President Bush has used signing statements attached to adopted legislation more times than all the prior 41 presidents combined. As Charlie Savage poignantly described it in his April 30, 2006 article in the Boston Globe:

[Bush] has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files "signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

Of course, since that Pulitzer Prize-winning article, Bush has managed to use his veto three times (twice to halt stem-cell research and once to avoid halting the Iraq War). However, his singing statements continue unabated.

In 2006, the American Bar Association produced their report entitled “Task Force On Presidential Signing Statements And The Separation Of Powers Doctrine.” This report begins with the following resolution:

RESOLVED, That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;

On June 18, 2007, the United States Government Accountability Office issued a report about its analysis of a narrow group of President Bush’s signing statements. Its subject was “Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts.”

In this document’s summary, the GAO concluded that:

In 11 of the 12 appropriations acts for fiscal year 2006, the President issued signing statements identifying constitutional concerns or objections with some provisions appearing in the acts. In total, the President singled out 160 provisions of law in these 11 signing statements, which we categorized on the basis of the President’s stated concern or objection. We examined 19 of these provisions and found that agencies did not execute 6 of the provisions as written.

Considering the fact that President Bush has issued over 750 signing statements, we can only imagine the amount of legislation that is not being executed by this president.

The impending Constitutional crisis over these signing statements is the likely impetus behind Senator Arlen Specter’s (R-PA) introduction of
Senate Bill 1747, the “Presidential Signing Statement Act of 2007.”

(4) Much more recently, some courts have begun using presidential signing statements as a source of authority in the interpretation of Acts of Congress.

(5) This judicial use of presidential signing statements is inappropriate, because it in effect gives these statements the force of law. As the Supreme Court itself has explained, Article I, section 7, of the Constitution provides a `single, finely wrought and exhaustively considered, procedure' for the making of Federal law. I.N.S. v. Chadha, 462 U.S. 919, 951 (1983). Presidential signing statements are not passed by both Houses of Congress pursuant to Article I, section 7, so they are not the supreme law of the land. It is inappropriate, therefore, for courts to rely on presidential signing statements as a source of authority in the interpretation of Acts of Congress.

In the Specter Bill, Congress would reserve the right to support their own positions, contrary to presidential signing statements by submitting amicus briefs to the court ruling on any Constitutional issues regarding signing statements.

It is questionable whether any challenges regarding presidential signing statements will get adjudicated on their merits given Bush’s Presidential Playbook:

1)Claim Executive Privilege
2)Claim Harm to National Security

The result is that courts are unable to get to the actual case or controversy as a result of the plaintiffs’ lack of standing.

Part II of this article will expose 10 incredible Bush singing statements and their related statutes. (It takes a bit of time to untangle the mess). Also, a discussion of how the Supreme Court case, Clinton v. City of New York in which the line item veto was ruled unconstitutional, might play into this three-branched fight.

As a preview, consider the words of newly confirmed Associate Justice Samuel Alito, Jr. from his time as Justice Department lawyer in 1986:

Reagan’s legal team should “concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress.”