Bush’s Signing Statement Dictatorship

The fine folks at Future of Freedom Foundation posted today a piece I did on Bush’s endless nullifications of federal law.

The longer he reigns, the more difficult it is to give Bush the benefit of the doubt.

Bush’s Signing Statement Dictatorship
by James Bovard, October 9, 2006

President Bush has once again decreed that his personal pen is the highest law of the land. In a statement issued on October 4, 2006, he announced that he would ignore many provisions of the Homeland Security appropriations act he signed earlier in the day. His action vivifies that the rule of law now means little more than the enforcement of the secret thoughts of the commander in chief.

Bush’s postsigning statement declared that he would interpret many sections of the new law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch.” In plain English, this means that many of the limits that Congress imposed on Bush’s power — and that he accepted when he took the money Congress appropriated — are null and void. Why? Because the president says so.

The new law declared that only the Homeland Security Department’s privacy officer could alter or delay the department’s mandatory report on how its actions and policies affected Americans’ privacy. Congress included this safeguard because of the Bush administration’s long record of intruding into Americans’ lives — from the Total Information Awareness system, to vacuuming up information on airline passengers, to stockpiling phone records of millions of citizens.

After he signed the bill, Bush announced that he is effectively entitled to edit the report as he pleases. But his “right to edit” means that he is entitled to delete information and thereby prevent Congress from learning of how the feds continue to shred privacy.

Bush pulled the same trick in March after he inked a renewal of the USA PATRIOT Act, announcing that he would scorn notifying Congress on how the feds are using PATRIOT Act powers. Bush declared that he would interpret the law “in a manner consistent with the president’s constitutional authority to … withhold information.” Bush is apparently convinced that he is entitled to govern in secrecy, and any provision of a law to the contrary violates his imperial prerogatives.

George W. Bush has added more than 800 “signing statements” to new laws since he took office. Earlier presidents occasionally appended such comments to new statutes, but Bush is the first to use signing statements routinely to nullify key provisions of new laws.

The “unitary executive” doctrine assumes that all power rests in the president and that checks and balances are an archaic relic. This is the same “principle” the Bush administration invoked to deny Congress everything from Iraqi war plans to the records of the Cheney Energy Task Force. Bush has invoked the “unitary executive” doctrine almost 100 times since taking office, according to Miami University professor Christopher Kelley.

The American Bar Association recently declared that Bush’s signing statements are “contrary to the rule of law and our constitutional separation of powers.” The Congressional Research Service reported last month that Bush is using such statements as part of his “comprehensive strategy to … expand executive power.”

Apparently, the government is no longer obliged to obey any law that Bush does not personally approve. At a June congressional hearing, Sen. Ted Kennedy (D-Mass.) asked Justice Department lawyer Michelle Boardman for a list of all the laws that Bush has declared will no longer be enforced. Boardman replied, “I cannot give you that list.”

How can we know which laws Bush approves of? It’s a secret. Bush’s personal thoughts thus become the ultimate law of the land. No one can know whether the government is violating the “law” because Bush has not publicly declared what the law is.

Americans may have to wait many years to learn what the rule of law meant in 2006. The truth may be suppressed until Bush’s aides begin publishing their memoirs or until the Supreme Court has a change of mood and decides that the executive branch is not entitled to boundless secrecy.

So what is the meaning of “limited government” in the Bush era? Merely that the courts and Congress must be prohibited from limiting the president’s power. Bush’s signing statements are building blocks for dictatorship. The longer he builds, the darker America becomes.

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation.

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4 Responses to Bush’s Signing Statement Dictatorship

  1. MarkN October 9, 2006 at 1:27 pm #

    Bush’s signing statements are his method for implementing the line item veto, which many presidents have sought. Certainly his notion of a “unitary executive”, his obsession with secrecy and his declarations that he will not obey certain laws have upset the “checks and balances” basis of the Constitution and have seriously damaged the Constitution’s protections of individual rights. But Congress and defects in the Constitution must share some of the blame as well.

    The writers of the Constitution failed in two respects. First, they assumed (or maybe just hoped) that their written document could control the appetite for power of government officials. They were seriously wrong on this. Second, although they tried very diligently to look into the future, they could not predict all the ways by which the Constitution could be subverted. One glaring failure of the Constitution, for example, is that it did not prohibit Congress from writing single laws that address multiple issues. This forces Presidents to veto or sign laws that contain some provisions they do not like or that they consider to be unconstitutional. Perhaps if an informal precedent had been established according to which Presidents always vetoed such laws, that might have forced Congress to address only one issue in each law. But that didn’t happen. So now we are getting signing statements in lieu of vetoes. It surprises me that no previous President took the course that Bush has taken. Maybe that just tells us something about Bush, but it also points out how the so-called “rule of law” is wishful thinking, at least at the level of national constitutions. Determined people will always find ways around constitutional limitations, written or unwritten. Perhaps the true “dismal science” is not economics but constitutional law.

  2. Tom Blanton October 9, 2006 at 5:19 pm #

    Great article, Mr. Bovard. It has inspired me to develop the Unitary Individual Doctrine complete with my own unsigned statements.
    ——–
    Sample Unsigned Statement:

    Dear Imperial President,

    The law you signed today entitled (Name Of Law) sucks and by the power vested in me under the 9th and 10th Amendments of the U.S. Constitution, and under the theory of the unitary individual, I hereby declare said law to be null and void as so far as it applies to me.

    Unsigned this___day of_______, 2006

    P.S. – You suck too, Mr. Decider
    ——–

    Be sure and save a copy for your files, so everything will be legal.

  3. Jim October 9, 2006 at 8:08 pm #

    Tom – this is a great idea! You should do an article on this — it would be one fine kickpass piece!

    The only thing missing is to have some politically-appointed lawyer to sprinkle his holy water phrases over whatever politicians choose to do. But since you’re not a politician, I guess you can save the legal fees.

  4. Jim October 9, 2006 at 8:14 pm #

    MarkN – that is a great line about the true dismal science being constitutional law. That line should be heard far and wide.

    I don’t know if the Founding Fathers expected the Constitution to be a reliable leash on politicians. Madison had wonderful cynical comments in the months before the Convention where the Constitution was carved.

    Perhaps the Founders did not include a prohibition of multiple-issue laws because they did not expect the federal government to be attempting to micromanage not only the United States but the entire world.

    But the Founders – at least the honest ones – were right about politicians being damn rascals.