Thursday, September 13, 2007

The President's Pen: Negating Congressional Initiative and Hampering Effective Policy

The presidential signing statement is not new. Its been around for a long, long time, but the frequency with which this President has employed it is staggering. Between 1817 and 1981, only 75 such statements were issued from the White House. As of June 2006, President Bush had issued over 600. (For an excellent overview of Bush's use of signing statements, It is true that Presidents Reagan and Clinton issued signing statements at a far greater rate than their predecessors, this executive has implemented the form for the purposes of participating in a purely legislative process: the determination of what issues federal legislation should address.

This is what bothers me most about President Bush's use of the signing statement. He is effectively telling Congress, "I understand that you have identified a social problem, but I disagree with the means you chose to address is (or perhaps that it is a problem at all). Thus, I will abandon my Constitutional duty of implementation, because you, vox populi, are talking jive."

It's fun to eviscerate democracy!

The first signing statement issued by President Bush is illustrative of this point. Congress, in passing the Animal Disease Risk Assessment, Prevention, and Control Act, instructed the Secretary of Agriculture to provide reports including legislative recommendations on various issues of animal disease prevention. President Bush's signing statement objected to Congress' temerity in telling his employee what to do. The merit of the administration's fundamental separation of powers argument here is beyond my capacity or present interest to assess, but this example is telling on a more basic level.

Here, Congress has responded to widespread public apprehension about diseases carried by animals and their potential communicability to humans or impact on the food supply. (Remember Avian Flu?) The President - whether or not he agreed that this was an important problem with a role for the federal government in tackling it (it looks like he did, given that his CDC has been training to deal with a potential Avian Flu pandemic) - squelched a useful avenue for the provision of valuable scientific expertise to the Legislature for reasons boiling down to a juvenile bureaucratic turf war. Congress saw a problem, realized it needed expert assistance to effectively legislate against it, and asked for that aid. President Bush ignored the public good, legislative and popular mandate, and the quest for effective policy solutions.

Perusing the index of signing statements published by ACS (pdf) is an interesting and frustrating endeavor. The exercise also reveals that President Bush has used signing statement to usurp judicial - in addition to legislative - powers. In many cases, the administration's reason for issuing a signing statement is that the particular provision at issue contravenes a constitutional provision or the Supreme Court's interpretation thereof. (Very often the signing statements invoke INS v. Chadha as prohibiting post-enactment participation of Congress in implementation decision-making).

While all government actors should consider the constitutionality of their actions at all times, the supreme arbiter of constitutionality is the Supreme Court (see e.g. Marbury v. Madison). This is especially true when applied to interpreting the Court's own precedents.

In the end, my overwhelming reaction to this important documentation of a little-known presidential tactic is quite blunt: I implore you Mr. President, KNOW YOUR ROLE. Let the Court and Congress to their respective jobs and you stick to the enduring inept execution of your own.

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