An article in the latest NY Review of Books, "Power Grab" by Elizabeth Drew, has convinced me to revisit a topic we've touched on several times here, that of the presidential signing statement. As mentioned before, our president, the Great Decider, has a historically unique penchant for these statements, both for how pronounced they are in their power and how proficient he is at their issuance.

Delivered in near or complete silence for an unprecedented 750 items (according to the Boston Globe report referenced in my May 14th post), these statements seem to know no limits in their scope or influence, affecting everything from torture as an interrogation technique and government wiretapping of domestic calls to the distribution of government science scholarships. The President has acted with far more frequency than his predecessors, even his most modern ones -- ever since Reagan began using these as a strategic device to circumvent Congress and aggregate power, numbers have been higher than in the past, yet nowhere near Bush's tally. Reagan issued 71 of these in his eight years in office, while the President's father, HW, fired off 146; on the other side of the aisle, Clinton split the middle of these two goalposts with 105 in his eight years. There were only 75 issued total before these guys got into office, in the entire history of the country. Yet even taken together, their 322 -- for 20 years in office, mind you -- is nowhere near the profligacy of the Great Decider's five and change, to this point.

But other than having a broad understanding of what these proclamations do -- essentially giving a nice, big "F.U." to the members of Congress -- the finer points of them are lost on the general public. What Drew's article does a nice job of is explaining functionally how these things work. She writes:

"Bush has cited two grounds for flouting the will of Congress, or of unilaterally expanding presidential powers. One is the claim of the "inherent" power of the commander in chief. Second is a heretofore obscure doctrine called the unitary executive, which gives the president power over Congress and the courts. The concept of a unitary executive holds that the executive branch can overrule the courts and Congress on the basis of the president's own interpretations of the Constitution, in effect overturning Marbury v. Madison (1803), which established the principle of judicial review, and the constitutional concept of checks and balances."

Since the President can issue these statements whenever he wants to and with as little fanfare or explanation as he deems necessary (which, if you're like our current leader, is about the same as the number of stripes you'll find on an elephant), this leads to the sham of public pageantry described in the following passage:

"The public scenes of the President surrounded by smiling legislators whom he praises for their wonderful work as he hands out the pens he has used to sign the bill are often utterly misleading. The elected officials aren't informed at that time of the President's real intentions concerning the law. After they leave, the President's signing statements—which he does not issue verbally at the time of signing— are placed in the Federal Register, a compendium of US laws, which members of Congress rarely read. And they are often so technical, referring as they do to this subsection and that statute, that they are difficult to understand."

Take the President's response to Senator McCain's anti-torture amendment for detainees, which was tacked onto the end of the Defense Appropriations Bill last year, HR 2863, and approved by both chambers of Congress -- 90-9 in the Senate, 308-122 in the House -- as an illustrative example of this last point. To explain his dissent for the bill and his intentions to disregard it if necessary, he wrote:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005."

This is what lawmakers -- not lawyers with a dozen years of deciphering legal jargon -- were supposed to read, understand, and contest, if they had a quarrel with it when it showed up unheralded in the Register and the White House website. Sure, in a perfect world our lawmakers would have the time, wherewithal, and wisdom to digest this and each of the other 749 statements -- 750 rebuttals to the products of their hard labor -- but when these statements come in the form of heavily encrypted missives such as this, that need to be intercepted before they can even be decoded, the chances are worse than finding those aforementioned stripes. (And this isn't even the most damning example. That garbled cogitation -- of construing x "in a manner consistent with the constitutional authority of the President" -- is one of the President's favorite chestnuts, showing up repeatedly in his signing statements, apropos of essentially nothing, including five times in the linked one above.)

Now consider how the much-maligned President Clinton used his signing statements to reject portions of law while during his term in office.This excerpt, taken from a random signing statement from 1996 -- his Statement on Signing the National Defense Authorization Act for Fiscal Year 1996 -- deals with a provision that permits (requires, actually) "the discharge of military personnel living with HIV, where such discharge is not required by any medical, public health, or military purpose." Clinton registered his displeasure thusly:

"This provision is blatantly discriminatory and highly punitive to service members and their families. People living with HIV can and do lead full and productive lives, provide for their families, and contribute to the well-being of our Nation. The men and women affected by this provision are ready, willing and able to serve their country with honor and should be allowed to continue to do so. Therefore, I strongly support the current efforts in the Congress to repeal this provision before a single service member is discharged from the armed forces.

Consequently, I have concluded that this discriminatory provision is unconstitutional. Specifically, it violates equal protection by requiring the discharge of qualified service members living with HIV who are medically able to serve, without furthering any legitimate governmental purpose...In accordance with my constitutional determination, the Attorney General will decline to defend this provision. Instead, the Attorney General will inform the House and Senate of this determination so that they may, if they wish, present to the courts their argument that the provision should be sustained.  Further, to mitigate any unfair burden that this legislation could place on these service members and their families pending any repeal or judicial invalidation, I have directed the Secretaries of Defense, Veterans Affairs, and Transportation, in carrying out the provisions of this Act, to take all steps necessary to ensure that these service members receive the full benefits to which they are entitled - including, among other things, disability retirement pay, health care coverage for their families and transition benefits such as vocational education."

Not only does he explain why he disagrees with the bill, he explains exactly what he is going to do as a result. Clear, cogent, and concise, with no beating around the bush or efforts at subterfuge. Which means that Congress or the Court, should they have felt so inclined, could then have directly challenged Clinton's assertions and intended enforcement of the bill or altered the existing legislation in an effort at compromise. With Bush's cryptic dicta, you need someone to divine the scattered coffee grounds at the White House to even know these things exist before you could begin to formulate a response.

And that's precisely what he wants. As Dahlia Lithwick notes in this Slate article from January (which explains the difference between her 505 instances and the Globe's 750 five months later), what is unique about the Bush presidency -- besides the aforementioned problem of how often and how broadly he uses these statements -- are the myriad encroachments he perceives on his power and the scarce explanation he gives to justify his subsequent actions. She writes:

"Of the 505 constitutional objections he has raised over the years, Cooper found the most frequent to be the 82 instances in which Bush disputed the bill's constitutionality because Article II of the Constitution does not permit any interference with his 'power to supervise the unitary executive.' That's not an objection to some act of Congress. That's an objection to Congressional authority itself. Similarly, Cooper counted 77 claims that as president, Bush has 'exclusive power over foreign affairs' and 48 claims of 'authority to determine and impose national security classification and withhold information.' Bush consistently uses these statements to prune back congressional authority and even—as he does in the McCain statement—to limit judicial review. He uses them to assert and reassert that his is the last word on a law's constitutional application to the executive. As he has done throughout the war on terror, Bush arrogates phenomenal new constitutional power for himself and, as Cooper notes, 'these powers were often asserted without supporting authorities, or even serious efforts at explanation.'"

And while every President since Monroe has used these statements, as detailed nicely in the historical part of this essay by Miami University professor Dr. Christopher Kelley, this Administration is the first to act so surreptitiously and in full knowledge that what they are doing, many times, is improper, if not outright illegal, in their efforts to avoid Congressional or judicial checks and balances. As Grover Norquist -- yes, that Grover Norquist, surprisingly -- says in Drew's article, "They're not trying to change the law; they're saying that they're above the law and in the case of the NSA wiretaps they break it."

Consider the January press briefing she quotes to that end between Attorney General Alberto Gonzales and reporters:

"Asked why the administration didn't go to Congress for authorization to wiretap domestic calls in terrorism cases without seeking a warrant, Gonzales replied: 'We have had discussions with Congress in the past—certain members of Congress —as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.' In other words, having been told that Congress was unlikely to authorize the warrantless wiretaps of domestic calls, the administration went ahead and did the tapping."

And when it was revealed that they had gone against these Congressional warnings, the President attacked the leakers and his need to inform anyone of what he was doing.

"'In his statement acknowledging the wiretapping program, Bush said, "The fact that we're discussing this program is helping the enemy.' In an attempt to limit congressional oversight, the administration tried to restrict the number of members of Congress it would brief on such matters. According to a presidential directive issued quietly after September 11, officials were to discuss highly classified information with only the Republican chairman and the ranking Democrat on the Senate and House Intelligence Committees—committees that were established to conduct oversight on intelligence activities following the CIA scandals in the mid-Seventies—as well as the Republican and Democratic leaders of each chamber (a total of eight people) and not with the full intelligence committees. Under the new rules, the members of this small group of people weren't permitted to discuss the program with other members of the intelligence committees, or with their own staffs."

[Before the Hayden hearing and its accompanying uproar over the wiretapping program finally forced the White House to extend briefing rights over these matters to the entire Congressional intelligence committees, they had briefly reached a "compromise" to limit the additional members "to four Republicans and three Democrats, still leaving most of the intelligence committee members, not to mention other elected officials, in the dark," as Drew notes.]

All of this -- the cryptic signing statements, the abundant secrecy and lack of explanation -- creates a situation that is so unabashedly ridiculous that even Grover Norquist, the man who wants to shrink the government so he can drown it in the proverbial bathtub, is forced to say, "If you interpret the Constitution's saying that the president is commander in chief to mean that the president can do anything he wants and can ignore the laws, you don't have a constitution: you have a king."

All hail King George. Until next time, my friends...