Takeover, page 30
The administration ignored the complaints.
2.
Bush was not the first occupant of the White House to issue signing statements instructing subordinates in the executive branch about how they were to interpret new laws. But he made by far the most aggressive use of the device. By the seventh year of the Bush-Cheney presidency, Bush had attached signing statements to about 150 bills enacted since he took office, challenging the constitutionality of well over 1,100 separate sections in the legislation. By contrast, all previous presidents in American history combined had used signing statements to challenge the constitutionality of about 600 sections of bills, according to historical data compiled by Christopher Kelley, a Miami University of Ohio political science professor who was one of the first to study signing statements. “What we haven’t seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House,” Kelley said. “That is what is staggering. The numbers are well out of the norm from any previous administration.”
Bush’s record was different from his predecessors’ in another way. He was also virtually abandoning his veto power. Well into the seventh year of his presidency, Bush had vetoed just two bills—a funding measure Congress passed in July 2006 for embryonic stem cell research and an Iraq war spending bill Congress passed in May 2007. No other modern president had made so little use of his veto power. Even as his immediate predecessors had increased their use of signing statements, they had also continued to veto a bill when they had serious problems with one or more of its provisions. Bill Clinton, for example, vetoed thirty-seven bills, George H. W. Bush forty-four, and Ronald Reagan seventy-eight. Not since the nineteenth century had any chief executive made as little use of his veto authority as did Bush during the first six years of his presidency.
For years, political observers had puzzled about why Bush, who was so aggressive about exerting his executive prerogatives in every other respect, was not vetoing bills. As the full scope of Bush’s use of signing statements became clear, so did the answer to the mystery: Bush’s legal team was using signing statements as something better than a veto—something close to a line-item veto. In 1998, the Supreme Court had ruled that line-item vetoes, even when Congress approves of them, are unconstitutional because the Founders wanted presidents to either veto an entire legislative package or accept it all. But the Bush-Cheney administration had figured out that if a president signed a bill and then instructed the government to consider selected provisions null, he could accomplish much the same thing. Moreover, it was an absolute power because, unlike when there is a regular veto, Congress had no opportunity to override his legal judgments.
Although signing statements are filed in the Federal Register, almost nobody in Washington outside the executive branch paid any attention to them until 2006.5 Then, Bush’s challenges to the torture ban and the Patriot Act oversight provisions prompted a closer look at the other instructions he had issued since taking office. Once deciphered, the signing statements were a road map to the full implications of his administration’s agenda of concentrating ever more governmental power into the White House.
3.
Far back into the nineteenth century, presidents occasionally signed a large legislative package while declaring that some section of the bill was unconstitutional, so the statute created by that section of the bill need not be enforced as written. But the use of signing statements was rare until the mid-1980s, when a group of young conservative attorneys working in the Reagan administration realized that issuing the documents more frequently might be a way to expand presidential power.
The inspiration for taking a closer look at signing statements appears to have been a high-profile fight involving new procedures for government contractors. In 1984, Congress passed a bill called the Competition in Contracting Act. President Reagan signed the bill but issued a signing statement telling the executive branch that a section of it was unconstitutional, and he directed agencies not to obey the statute created by that section. A losing bidder who would have won a contract if the section had been obeyed sued the government, and a federal judge ruled in March 1985 that the Reagan administration had to obey all of the act’s provisions. But Attorney General Ed Meese, insisting that the executive branch had independent power to interpret the Constitution, declared that the government would refuse to comply with the ruling. An appeals court upheld the ruling, chastising the Reagan administration for trying to seize a kind of line-item veto power for itself, and the House Judiciary Committee voted to cut off funding for Meese’s office unless the executive branch obeyed the courts. In June 1985, Meese backed down.6
That same month, Steven Calabresi joined the Meese Justice Department after finishing up his clerkship year with appeals court judge Robert Bork, whom Reagan later unsuccessfully nominated for the Supreme Court. Calabresi (who, as mentioned earlier, had cofounded the Federalist Society in 1981 while a law student), linked up with another young conservative. His name was John Harrison, and he, like Calabresi, had recently graduated from Yale Law School and then clerked for Bork. As they brainstormed ways to advance Reagan’s conservative agenda, Calabresi and Harrison hit upon a new use for signing statements. Despite the Competition in Contracting defeat earlier that summer, on August 23, 1985, the two young attorneys wrote a memo to Meese proposing that Reagan should start issuing signing statements much more frequently as part of an overall strategy of increasing the executive branch’s influence over the law.7
Specifically, Calabresi and Harrison were interested in how “activist judges” used and abused legislative history—the transcript of debate by members of Congress as a bill was being crafted—when called upon later to interpret the meaning of a disputed statute. Signing statements, the two young lawyers argued, could be used to create a comparable record of the president’s interpretation of potentially ambiguous laws so that his view could be taken into account as well. Meese liked their proposal, and in December 1985, the attorney general wrote to the West Publishing Company and asked them to include presidential signing statements in the U.S. Code Congressional and Administration News, the standard collection of bills’ legislative history. The company agreed to begin doing so, a major step in increasing the perceived legitimacy of the device.8
In September 1985, a Meese aide, T. Kenneth Cribb, asked the acting head of the Office of Legal Counsel, Ralph Tarr, to draft a memo explaining how the government had issued signing statements up until that point, and to suggest ways to improve the process, given Meese’s interest in issuing them more systematically.9 A month later, Tarr did that and more. In a prescient seven-page manifesto, Tarr wrote that signing statements were “presently underutilized and could become far more important as a tool of Presidential management of the agencies, a device for preserving issues of importance in the ongoing struggle for power with Congress, and an aid to statutory interpretation for the courts.” Indeed, Tarr pointed out, the device was potentially powerful in ways that went far beyond simply adding a president’s views to a statute’s legislative history in the hope that someday a court might pay attention to it. “It might also give [the White House] an additional tool—the threat of a potential signing statement—with which to negotiate concessions from Congress.” And, he said, the statements can be used as a powerful device for telling executive branch agencies how to interpret a new law: “The President can direct agencies to ignore unconstitutional provisions or to read provisions in a way that eliminates constitutional or policy problems. This direction permits the President to seize the initiative in creating what will eventually be the agency’s interpretation,” Tarr wrote.10
Cribb also asked the Litigation Strategy Working Group, a brain trust of about fifteen political appointees drawn from throughout the Justice Department, to study the “theoretical and practical issues” raised by the possibility of expanding the use of signing statements.11 This request led to a February 6, 1986, memo by Samuel A. Alito, a member of the Litigation Strategy Working Group, in which the future Supreme Court justice laid out a proposal for a pilot project aimed at issuing signing statements more frequently as a way to “increase the power of the executive to shape the law.”
Alito focused on the use of signing statements as legislative history, a far more modest use of the mechanism than the Bush-Cheney administration’s practice. But he still recognized that what they were playing with was potentially revolutionary, predicting major problems if their plan was sprung artlessly. Alito foresaw that congressional relations could be frayed “due to the novelty of the procedure and the potential increase of presidential power.” And, he emphasized, “congress is likely to resent the fact that the president will get in the last word on questions of interpretation.”
Therefore, Alito suggested, the plan should be unveiled in slow motion, beginning with bills that concerned only the Department of Justice, and gradually ramping the practice up over time to cover laws that affected the rest of the federal government. “As an introductory step, our interpretive statements should be of moderate size and scope,” he wrote. “Only relatively important questions should be addressed. We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress. The first step will be to convince the courts that Presidential signing statements are valuable interpretive tools.”12
After several years, Calabresi and Harrison’s original idea—getting judges to start citing the devices as a legitimate part of a statute’s legislative history—did not pan out, but the effort had unintended consequences. As Tarr had foretold, Reagan and his successors discovered a different power that flowed from the practice of issuing signing statements more frequently, using them to instruct subordinates in the executive branch agencies about how they were to interpret laws—frequently by declaring, as in the Competition in Contracting Act dispute, that certain sections of bills were unconstitutional and need not be enforced or obeyed as written. “I initially thought of signing statements as presidential legislative history,” said Calabresi, who is now a law professor at Northwestern University in Chicago. “I’ve subsequently come to think of them as being important vehicles by which presidents can control subordinates in the executive branch. They subsequently came to be important to the Unitary Executive.”13
By the end of Reagan’s second term, he had used statements to challenge, interpret, or rewrite ninety-five sections of bills—the most by any president in American history up to that point.14 And when the Bush-Quayle administration’s legal team inherited the newly important tool, they decided to expand upon it in order to meet what they perceived to be a mounting problem in the bills Congress was sending them.
In a January 1990 speech to the Federalist Society, Richard Thorn-burgh, George H. W. Bush’s first attorney general, complained that the veto power the Founders gave the president was no longer good enough as a means for defending his prerogatives from congressional meddling, because lawmakers were increasingly lumping new restrictions on presidential power into large and important bills. “Today’s legislative process has rendered the presidential veto a less effective check on congressional encroachments than was envisioned two centuries ago,” Thornburgh said. “It is often very difficult for the President to veto legislation that contains sometimes blatantly unconstitutional provisions. For example, Congress has become fond of inserting substantive provisions in appropriations bills. This is what they call making the provision veto-proof.”15
Thornburgh did not, in that speech at Washington’s Mayflower Hotel, raise the possibility of using signing statements as a substitute line-item veto to solve the problem. But the record of the Bush-Quayle administration demonstrates that they hit upon using signing statements as precisely the solution to the problem Thornburgh described. During their four years in office, the use of signing statements ballooned again: The first President Bush used signing statements to challenge 232 sections of bills.
Bill Clinton’s Democratic administration liked signing statements, too. In a November 1993 memo, Walter Dellinger, head of the Office of Legal Counsel for Clinton, wrote: “If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce… such a provision, can be a valid and reasonable exercise of Presidential authority.”16
Confronted by a Republican-controlled Congress for most of his presidency, Clinton used signing statements to challenge 140 sections of bills over eight years—not as many as the Bush-Quayle administration, but still the second most in history to that point. In 1997, for example, Congress passed a military budget bill that contained a section forbidding the transfer of American military equipment to United Nations peacekeeping forces unless Congress received fifteen days’ advance notice. When Clinton signed the bill, he issued a signing statement saying that because he was the commander in chief and had independent authority to conduct the nation’s foreign affairs, he need not obey the fifteen-day-notice law.17
But Clinton’s legal team was inconsistent and hesitated to go all the way. For example, in February 1996, Congress passed a military budget bill that included a section requiring the Pentagon to discharge all HIV-positive soldiers, even if they were otherwise healthy. When Clinton signed the bill, he issued a signing statement declaring that he had “concluded that this discriminatory provision is unconstitutional.”18 He urged Congress to repeal the law and said he would not let the Justice Department defend the law in court if an HIV-positive soldier sued the government.
But Clinton’s legal team—Dellinger and White House counsel Jack Quinn—explained to reporters that while the president felt HIV provision was unconstitutional, he could not refuse to enforce the HIV provision, because no court ruling had confirmed his view. Instead, they said, the executive branch was bound to enforce the law until a court intervened. “When the president’s obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance to the Constitution, questions arise that really go to the very heart of the system, and the president can decline to comply with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue,” Dellinger said.19
After the Bush-Cheney administration took office, the use of signing statements would undergo exponential growth. Behind the scenes, the chief architect of the administration’s expanded use of signing statements was David Addington. Early on, Cheney made sure that all legislation would be routed through the Office of the Vice President for review before it reached the president’s desk. Addington then scoured the bills for any new laws that he believed would infringe on the president’s constitutional powers as he saw them, drafting signing statements for Bush to sign.
“Signing statements unite two of Addington’s passions,” said Brad Berenson, who also helped prepare signing statements as an associate White House counsel from 2001 to 2003. “One is executive power. And the other is the inner alleyways of bureaucratic combat. It’s a way to advance executive power through those inner alleyways…. So he’s a vigorous advocate of signing statements and including important objections in signing statements. Most lawyers in the White House regard the bill review process as a tedious but necessary bureaucratic aspect of the job. Addington regarded it with relish. He would dive into a two-hundred-page bill like it was a four-course meal.”20
Knowing that Cheney’s counsel was likely to review the bills, other White House and Justice Department lawyers began vetting legislation with Addington’s views in mind, according to a second former lawyer in the Bush White House, who asked not to be named. The younger attorneys learned to be extremely careful to flag any provision that placed limits on presidential power. “You didn’t want to miss something,” he said.
The staff of previous vice presidents had neither the authority to review legislation nor interest in such a task, and other administrations had left the bill-vetting process to the White House counsel’s office and the Justice Department’s Office of Legal Counsel. “What’s happening now is unprecedented on almost every level,” said Ron Klain, who was chief of staff to Vice President Al Gore from 1995 to 1999. “Gore was a very active policy maker in the Clinton administration, but that didn’t include picking through bills of Congress to find things to disagree with.”21
4.
Among the laws Bush challenged included requirements that the government provide information to Congress, minimum qualifications for important positions in the executive branch, rules and regulations for the military, restrictions affecting the nation’s foreign policy, and affirmative action rules for hiring. In his signing statements, Bush instructed his subordinates that the laws were unconstitutional constraints on his own inherent power as commander in chief and as the head of the “unitary” executive branch and thus need not be obeyed as written.
