By Jonathan Weisman
Washington Post Staff Writer
Tuesday, June 19, 2007
President Bush has asserted that he is not necessarily bound by the bills he signs into law, and yesterday a congressional study found multiple examples in which the administration has not complied with the requirements of the new statutes.
Bush has been criticized for his use of "signing statements," in which he invokes presidential authority to challenge provisions of legislation passed by Congress. The president has challenged a federal ban on torture, a request for data on the administration of the USA Patriot Act and numerous other assertions of congressional power. As recently as December, Bush asserted the authority to open U.S. mail without judicial warrants in a signing statement attached to a postal reform bill.
For the first time, the nonpartisan Government Accountability Office -- Congress's investigative arm -- tried to ascertain whether the administration has made good on such declarations of presidential power. In appropriations acts for fiscal 2006, GAO investigators found 160 separate provisions that Bush had objected to in signing statements. They then chose 19 to follow.
Of those 19 provisions, six -- nearly a third -- were not carried out according to law. Ten were executed by the executive branch. On three others, conditions did not require an executive branch response.
The instances of noncompliance were not as dramatic as some of the signing statements that have caused the most stir, such as Bush's suggestion that he was not bound by a ban on torture in U.S. military detention facilities. But congressional aides said they were significant.
For example, Congress directed U.S. Customs and Border Protection to relocate its checkpoints around Tucson every seven days to improve efforts to combat illegal immigration. But the agency took the law as an "advisory provision" that was "not always consistent with CBP's mission requirements." Instead, the agency periodically shut down its checkpoints for short periods of time, believing that would comply with congressional demands.
Frustrated by the Pentagon's broad budget submissions for the "global war on terrorism," Congress demanded in its 2006 military spending law that the Defense Department break down its 2007 budget request to show the detailed costs of global military operations, such as the wars in Iraq and Afghanistan. The department ignored the order. While the Pentagon did break out the costs of operations in the Balkans and at Guantanamo Bay, it did not detail expenditures in other operations.
The Federal Emergency Management Agency also ignored Congress's demand that it submit an expenditure plan for housing assistance and alternatives to the approaches that failed after Hurricane Katrina. FEMA told the GAO that it does not normally produce such plans.
In all those instances, presidential signing statements had asserted that congressional demands were encroaching on Bush's prerogatives to control executive branch employees as he sees fit and to receive effective services from his employees. White House spokesman Tony Fratto said Congress should not be surprised that the administration carried out the recommendations of the signing statements, although he cautioned that he could not know whether the agencies took action because of the statements.
"The signing statements assert the president's understanding of how the law should be executed, pursuant to his understanding of the Constitution, and that's the way we deal with them," Fratto said.
But Democratic lawmakers jumped on what they see as the actions of an imperial presidency with little respect for the law or the legislative branch.
"The administration is thumbing its nose at the law," said House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), who requested the GAO study and legal opinion along with Senate Appropriations Committee Chairman Robert C. Byrd (D-W.Va.).
"This GAO opinion underscores the fact that the Bush White House is constantly grabbing for more power, seeking to drive the people's branch of government to the sidelines," Byrd said in a joint statement with Conyers.
To be sure, some findings did not seem terribly egregious. In one instance, a Defense Department response to a House subcommittee was forwarded 17 days after its statutory deadline.
Nevertheless, the GAO's findings are legally significant, said Bruce Fein, a conservative constitutional lawyer who served on an American Bar Association task force that excoriated the president's use of signing statements in a report last year. White House officials have dismissed such concerns as overblown, suggesting that the statements were staking out legal positions, not broadcasting the administration's intentions.
But the GAO report suggests that the dispute over signing statements is not an academic one, Fein said, adding that Congress could use the report to take collective legal action against the White House.
"At least it makes clear the signing statements aren't solely for staking out a legal position, with the president just saying, 'I don't have to do these things, but I will,' " Fein said. "In fact they are not doing some of these things. You can't just vaporize it as an academic question."