Judiciary Committee Tackles Signing Statements

Senator Specter hauled an administration official (this time it was Michelle E. Boardman, deputy assistant attorney general in the Justice Department's Office of Legal Counsel) before the Judiciary Committee yesterday to sit and take a lambasting for the Administration's use of "signing statements" as an m.o. to get around provisions of the law they just don't like (I've discussed signing statements before in the context of the anti-torture bill, and don't like 'em much myself). There is coverage of yesterday's hearing in the CSM, NYT, and WaPo.

"There is a sense that the president has taken the signing statements far beyond the customary purviews. There's a real issue here," Specter began, "as to whether the president can, in effect, cherry-pick the provisions he likes and exclude the ones he doesn't like. Wouldn't it be better, as a matter of comity, for the president to have come to the Congress and said, 'I'd like to have this in the bill; I'd like to have these exceptions in the bill,' so that we could have considered that?"

Specter grew frustrated at Boardman's (lack of) answers and demanded written responses from her office. Boardman responded that because her office is currently flooded, it will "take a week." Boardman argued that the use of signing statements is "not an abuse of power." "Congress should not fear signing statements, but welcome the openness they provide," she said. "The president must execute the law faithfully, but the Constitution is the highest law of the land. If the Constitution and the law conflict, the president must choose." That's funny, I always thought we kept the courts around for that sort of thing ...

Senators Leahy and Kennedy (among others) were also sharply critical of the Administration's position. Leahy suggested that the signing statements were what has kept Bush's veto pen tightly capped: "The president hasn't vetoed any bills, but basically he has done a personal veto. He has said which laws he will not follow and ... put himself above the law, even the same law he has signed."

Kennedy asked Boardman for a list of all the bills on which Bush has issued signing statements (more than 750, by a recent estimate). She told him "I cannot give you that list," to which he replied "No, then who can? Is there any way for the public to know the president has made a judgment that he is not going to enforce a law?" Boardman's status also came in for some criticism; Leahy commented that the Administration should have dispatched "anybody who would have authority to speak on this. But then, considering the fact that they're using basically an extra-constitutional, extra-judicial step to enhance the power of the president, it's not unusual."

Now, some of those in attendance were underwhelmed; Senator Cornyn brushed it off by saying "This is a fascinating topic, mainly something law students and lawyers can love. As a practical matter, I don't know what impact it has.... It promotes public discourse and discussion about what the roles of the legislative branch and the executive branch are." He added of the use of presidential statements "It is precedented. It's not new." Georgetown law prof Nicholas Rosenkrantz called what he termed the "recent brouhaha" over signing statements "largely unwarranted."

I am inclined to disagree with Rosenkrantz; taken as part of a whole, the recent ballooning use of signing statements seems in fact quite worthy of discussion, as the Administration continues to arrogate more and more powers to itself at the expense of the legislature and the courts. It is positively striking to hear an Administration official say "If the Constitution and the law conflict, the president must choose." That's a troubling statement when our system of separated powers is balanced so precariously: if the executive chooses his own interpretation of the Constitution, he might just as well make the laws himself too. Not on my watch.

Good for the Judiciary Committee for holding this hearing, and once again I call upon them to keep this issue alive, keep demanding the answers and don't shut up until you get them.