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Tuesday, May 17, 2011

Presidential Signing the Constitution Away

            Our forefathers came to this great land to escape tyrants and find freedom.   Standing together to declare freedom from oppression, making their voices heard and clear on the point that government was not an authority to be served but to serve.  Our founding fathers started with a weak central government under the Articles of Confederation, moving to a stronger federal government under the Constitution.  The founding fathers found freedom from a king who held all the power over the people.  This led the founding fathers to create a system of checks and balances by separating the powers of government across the different parts.  This separation of powers protects our freedoms as citizens of these United States.  If these powers were gathered together, it would open the door for tyranny by putting all of the tools of government in the reach of one man.  Over the past thirty years Presidents of both political parties, frustrated by legislation being sent to them, have acted in a way that violates the separation of powers and in doing so have gathered the separated powers together opening the doorway for tyranny to come to power.  Presidents are able to deal with legislation in a way, regardless of any overwhelming support, it could simply be silenced along with the will of every American citizen.  This tide must be stemmed through decisive action to ensure that the representative self-government fought for by our forefathers will not perish from this great land by our enslavement in tyranny that our country has consistently fought against across lands both domestic and foreign.

            The practice of the President issuing a statement in conjunction with the signing of legislation into law has become common over the past 30 years.  These statements are printed as part of the official printing of the bill and as both former Assistant Attorney General Dellinger and the American Bar Association note Signing Statements are normally praise for the legislation, thanks directed towards people instrumental in its passing or a description of its utility (Harvard Law Review 601).  This type of statement was first issued by President James Monroe (American Bar Association 7) but was not common until the presidency of Ronald Regan, who issued 276 signing statements on pieces of legislation (Roberts and Pfiffner 250). 

            Critics of Presidential Signing Statements note that they aren’t listed in the Constitution as part of the Presentment Clause (The Constitution of the United States, Article I, Section 7, Clauses 2 - 3).  The claim derives from signing statements not being part of how the Constitution dictates handling legislation passed, making them unconstitutional.  It is clear that a Signing Statements are extra-constitutional, or outside the express wording of the constitution, but that doesn’t necessarily make it unconstitutional.  Presidential rejection of legislation mandates delivery of a statement to the Congress but not when signing legislation into law.  Presidential activities are not constrained to only things listed in the constitution or else the argument could be made that any press conference, speech or statement would be unconstitutional due to it not being prescribed in the Constitution. 

            The concern or problem with Signing Statements is that recent Presidents are having them printed with legislation signed into law with the intention of it carrying legal weight (Harvard Law Review 602).  The President will write a Signing Statement questioning the constitutionality of sections of the legislation and providing interpretation it in a way that is different from the plain writing of the law (Frank qtd in Gates, pg 14).  President Regan was the first to do this (Harvard Law Review 599), followed by Clinton (Johnsen, 7) and Bush (Gate).  Then candidate Obama clearly stated his belief of the unconstitutionality of this practice and vowed he wouldn’t use them in the same (Obama qtd by CNSnews). 

                        Not long after taking office President Obama began issuing Signing Statements to modify legislation to his liking.  In the statements issued, President Obama interpreted legislation as being contrary to his authority as president (Wooley, Presidency Project).  This caused furor due to his previous statements on this issue (Underwood, George Mason History News).  The continued usage of signing statements is problematic as it continues to gather the powers of the legislature and judiciary into the office of the President. 

            The first power being gathered is that of the legislator, to see how this happens an examination of the line-item veto used under the Clinton Presidency that allowed then President Clinton to accept legislation in part and not as a whole, much like the more modern usage of Signing Statements, will show how that happens.  President Clinton signed the Line-Item Veto into law on allowing him the ability to strike sections of legislation sent to him, or accepting it in part.  This was later found to be unconstitutional by the Supreme Court decision in New York vs. Clinton.  The majority opinion struck on two major points.  The first was that the line-item veto gave the president the power to reshape laws by taking things only in parts to his liking and not considering the complete legislation as passed contrary to the plain reading of the Presentment Clause.  The President’s ability to reshape the meaning of the law through the line-item veto by only accepting it in part give the president the ability to change the legislation passed before it becomes law without the congress voting on the final form.  This is a de facto legislative power taken into the presidency violating the separation of powers dictated in the constitution by our founding fathers.  When the President issues a Signing Statement that openly states he is not going to follow the law as written or implement only the part of it he likes it causes the same result as the line-item veto, taking the legislative powers into his office.

            The second power being gathered is the one that decides that validity of a law in the light of the constitution, the judiciary.  The president will look at a piece of legislation, determine that part of it is very desirable for his agenda but dislike another part, feeling that it may be unconstitutional or infringe on his rights as President.  At this point the president may choose to veto or sign the bill as is called for in the Constitution.  As we have already seen, the problem recently is the President issuing a Signing Statement expressing his legal interpretation through commentary that he feels should carry comparable weight in the courts to what passed the legislature or rejecting parts of the legislation signed into law.  Under this point the president is using the excuse of making a judicial decision of constitutionality in determining lack of enforcement of a law.  This is a second separated power that is now being gathered into the office of the executive.

            Now we have come to a point of concentration of the powers of the central government under the Signing Statement model.  The president crafting legislation into what he wants it to be without oversight from the legislators and making decisions about the constitutionality of the law without judicial review.  The reason for the separation of powers was to provide checks and balances from any one branch of government becoming too powerful.  The prevention of tyranny through co-equal branches of governance, ensuring representation and preventing oppression of the citizens is now being violated through presidential Signing Statements.  Now is the time for solutions so that the tyranny does not grow into something menacing from the current benevolent usage.

            The first possible solution would be to allow the line-item veto eliminating the need for the President to use Signing Statements to reject part of a piece of legislation.  This would require an amendment to the Constitution or a change in the way that the line-item veto functions by re-passage of the legislation without the rejected sections.  The problem with either of these two items is that a president could easily clog the Congress with veto after veto to be dealt with on specific line items causing other legislation not to be dealt with.

            Another possible solution might be to impeach the president for breach of the constitutional duty to enforce laws (The Constitution of the United States, Article II, Section 3, Clause 4) that are passed with the Signing Statement being a clear expression of the dereliction of duty.  The problem with this approach is it would create the situation of a partisan argument over the policy that is not being enforced and not about the lack of enforcement.  Even if the President was deposed of his office it would still not solve the problem created by the way that Signing Statements are currently used and could easily be viewed as a partisan attack on the President.  This is disconcerting Presidents from both parties have utilized this tactic when encountering law they do not care for.  We must find a solution that moves the nation forward and limits the possibility of falling into partisan turmoil; this isn’t about particular laws or policies but about the health of our government’s soul we find in its founding principles. 

            A better solution is fivefold, designed to address the current problem but also its causes.  First, formally define a Signing Statement in the Constitution making it an optional item that carries no weight in law or interpretation of law by its existence alone.  Second, to prevent a President from feeling compelled to sign a piece of law because it gives something that desirable but has something less desirable inserted into it.  The houses of congress should limit the span that legislation to cover to a single topical area making all votes are up or down on one thing and less popular proposals can’t be added to popular proposals.  Third, defining the willful refusal to uphold constitutional directives explicitly assigned to the elected office held as being grounds for impeachment.  This would make the terms that a President could be impeached for in this realm much more explicit.  Fourthly, give the President the ability to immediately send a bill into the courts for review asking for a stay of enforcement on parts of the bill allowing for full constitutional review.  Lastly, a veto of legislation must be broken into two parts to explain the problem the President has with the bill but also offer specific proposals for modification of the bill to make it acceptable to him, providing a starting place for possible reform.

            This described five-part solution would give a President the ability to not enforce any part that was deemed unconstitutional and a way to instigate that review.  Any part that is constitutional and passed by the representatives of the citizens would need to be enforced and deliberate betrayal of that trust would be an impeachable offense.  Any veto would also have to list specific reasons for the objection such as questioning the constitutionality of a section or believing the policy to not be in the best interest of the country, this would set the stage for any overridden veto to have to be handled in a certain way by the President to avoid risking impeachment by either enforcing the law or sending it for Judicial review.

            While the presidents, both Republican and Democrat, have used Signing Statements with good intentions it was also the design of our well-intentioned founding fathers to separate the powers of government to keep them from being abused.  In working to solve the problem we must address the concerns that a President may have about parts of a law that they find unsuitable through veto and constitutional review.  That is balanced with the needs of the citizens to be represented and have our will carried out.  This isn’t about which party is right or wrong but about the shape of the nation’s soul in how it will conduct itself as the outpost of freedom it was founded to become.


Works Cited

CNS News. “ Do You Promise Not To Use Signing Statements? Candidate Obama in ’08: ‘Yes’”. YouTube Channel.  April 19, 2011. Web. 20 April 2011.

Gate, Harrison. “The Historical Roots of Presidential Signing Statements.” Washington and Lee University. Web. 29 April 2011

Harvard Law Review. “Context-Sensitive Deference to Presidential Signing Statements.” Vol. 120, No. 2 (Dec., 2006). pp. 597-618. Jstor. Web. 15 April 2011.

Johnsen, Dawn E. “Presidential Non-Enforcement of Constitutionally Objectionable Statutes.” Law and Contemporary Problems: The Constitution under Clinton: A Critical Assessment. Duke University. Vol. 64 No ½. (2000). pp. 7-60. Jstor. Web. 15 April 2011.

Roberts, Nancy and James Piffner. “Presidential Signing Statements and Their Implications for Public Administration.“ Public Administration Review. 69.2 (2009). 249-255. ABI/INFORM. Web. 20 April 2011.

Supreme Court Of the United States. Clinton Vs. New York.  June 25, 1998. FindLaw Web.  24 April 2011.

Wooley, John and Gerhard Peters. “Presidential Signing Statements: Hoover-Obama.” The American Presidency Project. 2011. University of California Santa Barbara. Web. 19 April 2011.

US. House of Representatives. Government Printing Office. “The Constitution of the United States”. Government Printing Office. 25 July 2007. 17 Apr. 0211

Underwood, Nick. “Signing Statements: Is Obama Following in Bush’s Steps?” History News Network. George Mason University. 2009. Web. 19 April 2011