Remember high-school government class, and the textbook explanation of how a bill becomes law? Congress drafts legislation which it sends to the President. If the President vetoes it, it fails, unless Congress has enough votes to override the veto. If the President signs the legislation, he issues a press release, hands out commemorative pens, and the bill becomes law.
Or maybe not.
As the media often notes, President Bush has never used his veto. As it turns out, his administration has instead acted upon advice given to then-President Reagan by a young lawyer named Samuel Alito, and simply avoided that pesky “checks and balances” thing that the Founders were so hung up on. They have used something called a “signing statement,” and it works like this: when Congress passes a bill the President doesn’t like, he goes ahead and signs it. But along with the usual (publicly distributed) press release, he issues his own “constitutional interpretation” of the legislation.
Fair enough; the President takes an oath to uphold the constitution, and if he believes legislation is unconstitutional, he is certainly entitled to say so. In the past, lacking a line-item veto, Presidents have used signing statements when a questionable measure has been attached to an otherwise important bill. More recently, such statements have been used as a not-so-subtle signal to federal agencies about how their boss, the President, wants the law to be interpreted and applied. But it took George W. Bush to take signing statements to a whole new level. He has used them to justify his intention to simply ignore provisions he dislikes, turning the statements into functional equivalents of line-item vetoes—albeit with some nifty added political benefits: the tactic deprives Congress of its constitutional right to override, and keeps most voters from ever noticing.
During his first term, Bush issued such statements 108 times. As Philip Cooper, an expert on presidential powers, has written “This tour de force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.”
We probably still wouldn’t have caught on, but the bill triggering the most recent use of this tactic was the high-profile McCain Amendment, outlawing torture of detainees and strenuously opposed by the Administration. When Bush signed it, he expressed his intent to “construe” the act in a manner consistent with his preferred interpretations of both presidential authority to “protect the American people” and “limits on judicial power.” In other words, he served notice that he will obey the law when—in his sole opinion—it doesn’t get in his way.
This is the grown-up version of kids crossing their fingers behind their backs while making a promise. “My fingers were crossed, so it didn’t count!”
In America, no one is above the law. Just as basketball players don’t get to decide for themselves whether they’ve committed a foul, even Presidents must obey referees and follow the rules of the game.