Friday, July 28, 2006; A24
ACROSS A WIDE range of areas, President Bush has asserted a grandiose vision of presidential power, one to which Congress has largely acquiesced. From domestic surveillance to holding detainees in the war on terrorism, the administration has generally ignored the legislature, brushed aside inconvenient statutes and proceeded unilaterally. All of this, as we have argued many times, warrants grave concern and a strenuous response. But it is worth separating that issue from the ongoing controversy over the president's aggressive use of what are called "signing statements" -- those formal documents that accompany the signing of a bill into law.
Ever since the Boston Globe reported this year that the president had used such statements to question the constitutionality of more than 750 provisions of law, critics across the political spectrum have been up in arms. The Senate Judiciary Committee held hearings, and this week a task force of the American Bar Association issued a report accusing the president of usurping legislative powers.
President Bush brought this skirmish on himself. He has used signing statements -- which indicate that he will interpret new laws so as to avoid the constitutional problems he has flagged within them -- far more frequently than other presidents. In some areas, he has used them to articulate deeply troubling views of presidential authority. Most infamously, in signing the amendment by Sen. John McCain (R-Ariz.) banning American personnel from using "cruel, inhuman or degrading" treatment on detainees, he stated that his administration would interpret the new law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power" -- apparently reserving for himself the power to override the prohibition.
Still, it is important not to let Mr. Bush's ugly signing statements bring the presidential practice into disrepute. Signing statements are actually a useful device for transparent and open government.
Presidents have long used signing statements to identify particular provisions of law as potentially unconstitutional. They have just as long declined to enforce provisions of law they regarded as unconstitutional. Particularly since the Carter and Reagan administrations, the use of signing statements has been on the upswing, and that's generally a good thing. These statements give the public and Congress fair warning about which laws the president intends to ignore or limit through interpretation. They thereby permit criticism and more vibrant debate. And they have no legal consequences over and above the president's powers to instruct the executive branch as to how to interpret a law -- which he could do privately in any case.
While Mr. Bush has been particularly aggressive about issuing signing statements, a great many break no new ground but merely articulate constitutional views that the executive branch has held across many administrations. The problem is not that Mr. Bush reserves the right to state his views; it is the dangerous substance of the views he sometimes states.