Takeover, page 32
The ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine worked for nearly two months researching, debating among themselves, and crafting a thirty-two-page report and recommendations. They unveiled their findings before a packed press conference at the National Press Club on July 23, 2006.32 Their conclusion: It is a violation of the Constitution for a president to sign a bill and then issue a signing statement declaring that some of its provisions are unconstitutional and need not be enforced (or obeyed) as written. The panel concluded that the Founders gave presidents only two options: veto a bill, or sign it and enforce all of it. “The president’s constitutional duty is to enforce laws he has signed into being, unless and until they are held unconstitutional by the Supreme Court,” the report said. “The Constitution is not what the president says it is.”33
In its report, the ABA task force acknowledged that its work had been prompted by “the number and nature of the current president’s signing statements,” but it emphasized that its criticism was “not intended to be, and should not be viewed as, an attack on President George W. Bush.” They noted that previous presidents had also used signing statements and they emphasized that their main concern was the future balance of power between Congress and the executive branch. Specifically, they warned that signing statements were evolving into a kind of back-door line-item veto, which the Founders never intended presidents to have—especially when Congress had no ability to override it. “A line-item veto is not a constitutionally permissible alternative, even when the president believes that some provisions of a bill are unconstitutional,” they said. “A president could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto.”*
More than 150 newspaper editorial boards, columnists, and political cartoonists around the country joined in the call for an end to signing statements. But the ABA task force’s findings met with a more controversial reception among some legal scholars. Some critics argued that the task force was being unrealistic. As former attorney general Thornburgh had argued back in 1990, Congress sometimes includes flawed provisions in large and important bills, which are impractical to veto over small constitutional problems. For example, the Supreme Court made clear in 1983 that Congress cannot force the executive branch to get the prior approval of an oversight committee before taking an action. Nor can Congress give one of its chambers or committees the ability to veto an executive branch decision. The court explained that the only actions by Congress that have legal force are those in which majorities in both chambers have approved something and then given it to the president to sign or veto. But Congress had continued to include unconstitutional one-chamber or one-committee “legislative veto” provisions in numerous bills. Presidents had signed such bills but said they would interpret the legislative veto provision to be a mere request to notify the committee about the actions the executive branch was taking. Under this wink-and-nod system, life in Washington had gone on. If presidents instead had to veto bills every time they contained such a small flaw, critics said, the machinery of government would grind to a halt.
The ABA task force, however, said that the Constitution’s limits on presidential power trump such pragmatic considerations. Congress could quickly fix a flawed bill and repass it within a few hours, they said. And they suggested that Congress would quickly clean up its act and pass tidier bills once presidents enforced the rules more rigidly.
Other scholarly critics rejected the notion that presidents can only either veto a bill or sign it and enforce all of it literally. They noted that most scholars agree that presidents can and should decline to enforce unconstitutional statutes that are already on the books from a previous administration. If that is the case, the critics said, then why can’t a president also sign a large bill with small constitutional flaws and not enforce them instead of vetoing it? And in such a situation, the critics added, a signing statement is a good thing, because at least it lets people outside the executive branch know about the decision. Take away signing statements, and presidents will still sign bills and not enforce all of their sections, but it will be less transparent.
To this, ABA president Michael Greco and the members of the task force replied: Signing a bill is different from deciding whether to enforce a law that is already on the books. A president swears an oath to protect and defend the Constitution. When given an opportunity to keep off the books a statute that would violate the Constitution, the president must veto the bill.
Finally, some critics of the ABA argued that the task force, by bending over backwards to appear bipartisan and to avoid singling out President Bush for criticism, had missed the real target. These critics agreed that the Bush-Cheney signing statements were outrageous but said the problem was not the device itself, but instead the legal theories being expressed in the signing statements. The Bush-Cheney team was making imperious claims about what kinds of laws violated the president’s powers. But future presidents with a more mainstream understanding of the Constitution ought to be able to keep signing flawed bills and issuing signing statements identifying any unconstitutional parts, they said.34 The liberal Harvard Law School professor Laurence Tribe, for instance, said he agreed that Bush had “abused” the practice of issuing signing statements, but he also said that taking away from future presidents the power to sign a bill and then not enforce parts of it would do more harm than good. “We need to keep in mind that institutional remedies designed to fit pathological power-holders might themselves prove to be misfits in their overall impact on what should be an enduring system of checks and balances,” Tribe wrote.35
But Mickey Edwards, the former Republican congressman from Oklahoma who also served on the ABA task force, said all the critics—both conservatives who accused the task force of being too anti-Bush, and liberals who accused it of being insufficiently anti-Bush—were missing the bigger picture. Thanks to the actions of recent presidential legal teams from both parties, the executive branch was prying open an ever-larger constitutional loophole in order to increase its power at the expense of Congress’s. Under the Bush-Cheney administration, he said, the practice reached a tipping point that finally brought it into the spotlight. Now that everyone realized what was happening, he said, it was time to put the presidency back into the veto-it-or-sign-it box the Founders intended.
“It’s not about Bush; it’s about what should be the responsibility of a president,” Edwards said. “We are saying that the president of the United States has an obligation to follow the Constitution and exercise only the authority the Constitution gives him. That’s a central tenet of American conservatism—to constrain the centralization of power.”36
7.
The controversy over the Bush-Cheney signing statements also prompted a sustained reaction in Congress.
At first, many of the lawmakers who stepped forward in 2006 to accuse the White House of usurping their institution’s constitutional power to write the law were Democrats. “We’re a government of laws, not men,” said Senate minority leader Harry Reid, Democrat of Nevada, adding, “It is not for George W. Bush to disregard the Constitution and decide that he is above the law.”37 Patrick Leahy of Vermont declared, “The scope of the administration’s assertions of power is stunning, and it is chilling.”38 Edward Kennedy of Massachusetts said that the Bush-Cheney administration, abetted by “a compliant Republican Congress,” was undermining the checks and balances that “guard against abuses of power by any single branch of government.”39 Representatives Sheila Jackson-Lee of Texas and Barney Frank and Edward Markey, both of Massachusetts, proposed legislation to roll back the use of signing statements.40
But some Republicans, perhaps recognizing that the White House would not always be in GOP hands, joined in the criticism. Senate Judiciary Committee chairman Arlen Specter held a hearing on signing statements on June 27, 2006. Specter asked the administration to send Attorney General Alberto Gonzales or Steven Bradbury, the acting head of the Office of Legal Counsel. Instead, the administration sent Michelle Boardman, a lower-ranking deputy. Boardman sidestepped questions about the legal merits of specific signing statements. Instead, she argued that Bush had actually shown Congress respect by using signing statements instead of vetoes when he had concerns about parts of the bills they had passed. “Respect for the legislative branch is not shown through [making a] veto,” she announced. “Respect for the legislative branch, when we have a well-crafted bill, the majority of which is constitutional, is shown when the president chooses to construe a particular statement in keeping with the Constitution, as opposed to defeating an entire bill that would serve the nation.”41
Boardman also insisted the president has the power and responsibility to bypass any statute that conflicts with the Constitution, even in cases “where the Supreme Court has yet to rule on an issue, but the president has determined that a statutory law violates the Constitution.” She also stressed that previous presidents had used signing statements to raise constitutional concerns about legislation they were signing as well.
But Senator Russ Feingold, Democrat of Wisconsin, pointed out that the administration had used that power “far more often” than any predecessor. Moreover, Feingold said, Bush had done so “to advance a view of executive power that, as far as I can tell, has no bounds.” He added that the White House had “assigned itself the sole responsibility for deciding which laws it will comply with, and in the process has taken upon itself the powers of all three branches of government.”
A month later, on July 26, 2006, Specter filed legislation that would give Congress the legal standing to sue a president over the claims he made in a signing statement so that a court could resolve whether or not a White House really had the power to set aside or rewrite a particular law. Specter’s bill would also instruct courts to ignore presidential signing statements when interpreting the meaning of a statute.
Meanwhile, Bush continued to issue several high-profile and controversial signing statements in late 2006. And neither Specter’s bill nor any of the related three House Democratic proposals received a vote before the Republican-controlled Congress adjourned at the end of 2006. But in early 2007, after Democrats regained power in both chambers of Congress, such measures were immediately revived. And as soon as Democrat John Conyers Jr. took over the gavel of the House Judiciary Committee in January 2007, he beefed up the committee staff by hiring a special “oversight and investigative unit” of about six attorneys to lead the panel’s probes of the administration. Conyers said its first tasks would include attempting to determine whether the executive branch had gone on to violate the laws Bush had claimed a right to ignore. “This is a constitutional issue that no self-respecting federal legislature should tolerate,” Conyers said.42
11
“To Say What the Law Is”: The Supreme Court
1.
On July 1, 2005, Supreme Court justice Sandra Day O’Connor—the author of the 2004 Hamdi opinion, which declared that “a state of war is not a blank check for the president”—sent President Bush a brief note. After nearly a quarter century of service on the bench, the justice was seventy-five years old, and her husband’s health was failing. “This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor,” O’Connor wrote. “It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”
O’Connor’s retirement unleashed tumult in Washington. It had been more than a decade since the last Supreme Court vacancy, and well-funded interest groups among both liberals and conservatives had long been bracing for the next nomination fight. In addition to being the first woman ever to serve on the Court, O’Connor was also by far its most powerful member. The Court often decided important cases by a 5–4 vote—with four generally predictable liberal votes, four generally predictable conservative votes, and O’Connor as a swing vote who held the power to decide which faction to make a majority. Her replacement could help shift the Court’s ideological balance for decades, affecting the outcome of a huge range of issues, including abortion, affirmative action, civil rights, the death penalty, environmental regulations, gay marriage, police searches, and states’ rights.
Eighteen days later, the press corps was told to assemble in a ceremonial space on the first floor of the White House dominated by marble walls, lush wine-red carpeting, and golden curtains. At 9:02 p.m., Bush appeared at the far end of the room and strode to a podium. By his side stood a fifty-year-old appeals court judge named John G. Roberts Jr.
“One of the most consequential decisions a president makes is his appointment of a justice to the Supreme Court,” Bush said. “When a president chooses a justice, he’s placing in human hands the authority and majesty of the law. The decisions of the Supreme Court affect the life of every American. And so a nominee to that Court must be a person of superb credentials and the highest integrity; a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law. I have found such a person in Judge John Roberts.”1
Polished and charismatic, Roberts had grown up the son of a steel-mill executive in Indiana before earning top grades at Harvard College and then Harvard Law School. He clerked on the Supreme Court for then–associate justice William Rehnquist before joining the Reagan administration in 1981 alongside a cohort of other young conservative attorneys. Roberts worked for both the Justice Department and the White House Counsel’s office under Reagan and was deputy solicitor general in the Bush-Quayle administration. The first President Bush had nominated Roberts for an appeals court judgeship but then lost the White House to Bill Clinton before the Senate took up Roberts’s nomination. Unconfirmed, Roberts spent the 1990s as a highly successful and well-paid appellate attorney, arguing dozens of times before the Supreme Court on behalf of private clients. When the second President Bush took office, he nominated Roberts for an appeals court seat again, and the Senate confirmed him in June 2003. Now, two years later, Roberts was in line for the promotion of a lifetime.
Only four days before Bush nominated Roberts to the Supreme Court, Roberts had voted to give the White House a sweeping victory in Hamdan v. Rumsfeld, a case challenging the president’s wartime powers. In November 2004, a federal judge had struck down Bush’s military commission trials at Guantánamo, saying that the president could not create such trials without involving Congress and that he had violated the Geneva Conventions. But on July 15, 2005, Roberts and two colleagues overturned the lower-court decision, ruling that Bush did not need to consult Congress before setting up his commissions. And in a separate part of the Hamdan case, which was decided by a 2–1 vote, Roberts cast the decisive vote to hold that the commander in chief has independent power to declare that the Geneva Conventions do not protect wartime detainees suspected of terrorism—calling this “the sort of political-military decision constitutionally committed to him.”2
When Bush announced that he was picking Roberts for the Supreme Court, some observers noted the close proximity of Bush’s decision and the military commissions ruling. But eyebrows really shot up the following month. On August 2, 2005, Roberts turned in a Senate Judiciary Committee questionnaire in preparation for his coming confirmation hearings. One of the questions the Senate asked was when he had met with administration officials to be interviewed as a potential candidate for the Court. Roberts told the Senate that he had met with Attorney General Alberto Gonzales on April 1, 2005—six days before he heard oral arguments in the case.3 On May 3, as Roberts and his two colleagues were conferring about how to decide the case and what the opinion should say, Roberts had gone to Vice President Cheney’s mansion at the U.S. Naval Observatory for a secret meeting with Cheney, Cheney’s chief of staff I. Lewis “Scooter” Libby, White House chief of staff Andrew Card, Bush’s political adviser Karl Rove, White House counsel Harriet Miers, and Gonzales. (The interview began when Cheney—who had been helping winnow down the list of possible Supreme Court nominees for months before O’Connor’s announcement—told Gonzales, “Well, you’re the lawyer. Let’s begin.”4) On May 23, Miers met with Roberts again. And Roberts’s final interview had been with Bush himself—a meeting at which Bush, as he emphasized in introducing Roberts, had been “deeply impressed” by the judge. The meeting with Bush was on July 15, the very day Roberts and his colleague handed down the opinion backing broad executive powers for the president.
2.
Disputes over the scope of the president’s constitutional powers, as previously noted, rarely get litigated, a reality that usually allows handpicked presidential legal teams to make their own pronouncements. On rare occasions, however, a plaintiff arises who has standing to sue a president, and such cases can result in an embarrassing and frustrating setback for aggressive White House legal teams. During these instances, a slight swing on the Supreme Court can make the difference. All other legal experts must make arguments about the text and history of the Constitution in order to convince others that their interpretation of the law is correct. But at the top of the American legal system, five justices on the Supreme Court don’t need to convince anybody. Instead, five human beings in black robes, each bringing his or her own experiences and agendas to the courthouse, have the raw power simply “to say what the law is,” as Chief Justice John Marshall wrote in Marbury v. Madison, the landmark 1803 case that established the principle that the court gets the final word on the meaning of the Constitution.
