The only power the president has with respect to making law is his signature or the veto of law passed by Congress, or threat thereof. That veto power requires that he return the bill with “his objections” for reconsideration which Congress can override by a two-thirds vote. He may also suggest an area needing the attention of Congress in his State of the Union Address. That’s it! Everything else is pure fabrication on his part to more fully empower himself.
So what are so-called “Signing Statements” used extensively by President George W. Bush and now President Barack Obama who once condemned them? These two words are not in the U.S. Constitution nor is there anything that could suggest this practice.
Instead of using one of only two options provided by the Constitution and sending objectionable parts back to Congress for reconsideration, he has created a more powerful third option, that of signing into law the bill excluding the parts that he disagrees with thus undermining the veto power.
Signing Statements also have the effect of enabling him to give his own separate spin to the law that is not that of the 535 individuals who created it. One person alone was never given such power. Unless immediately challenged by the Congress his will be the interpretation used by future Congresses, as well as by the Supreme Court, when related issues resurface. In essence he openly refuses to enforce the law he just signed despite his oath to do so. Kings with parliaments never had it so good.
Candidate Obama understood how the practice violated the Constitution and empowered the president when he said: “Congress’s job is to pass legislation. The president can veto it, or he can sign it. But what George Bush has been trying to do as part of his effort to accumulate more power in the presidency, is he’s been saying ‘Well, I can basically change what Congress passed by attaching a letter saying, I don’t agree with this part, or I don’t agree with that part. I’m going to choose to interpret it this way or that way,’” He continued, “That’s not part of his power. But this is part of the whole theory of George Bush that he can make laws as he’s going along. I disagree with that. I taught the Constitution for ten years. I believe in the Constitution.” Then he promises not to do the same thing were he to be elected president. “And I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end run around Congress” (“Obama Signing Statement: Despite Law, I Can Do What I Want on Czars,” by Jonathan Strong, April 15, 2011).
Candidate Obama was right to be so condemning of President Bush who “issued more than 100 such statements signaling that his administration would not carry out congressionally approved provisions on a range of issues, from barring the use of torture to requirements that the executive branch report certain information to Congress.”
Ultimately a bipartisan panel of the American Bar Association “decried Bush’s use of signing statements as a serious threat to the rule of law, saying it ran contrary to the system of presidential vetoes and congressional overrides created by the U.S. Constitution” (Exercising his Power or Venturing into Congressional Turf? By Louis Jacobson, July 24, 2009, St Petersburg Times Politifact.com).
So with this Constitutional clarity and solemn promise we would not expect to find President Obama doing the same thing. Wrong! To date he has done so 18 times (Signing Statements Still Controversial, by David G. Taylor, July 27, 2011, St Petersburg Times Politifact.com). His justifications for doing so are filed with the same legalese as are those of his predecessor he condemned.
The fact remains that he violates the Constitution as well—only he, unlike his predecessor, cannot claim ignorance in doing so. Having instructed the Constitution he knows the damage that his activity does to the separation of powers as well as empowering him to alter law.
Why does such continue and what is the solution? Because of the plague of political parties that George Washington warned would, in effect, cause us to be more loyal to them than to the principles of the Constitution. Republicans excused Bush and Democrats excuse Obama. The practice will continue to alter the Constitution until our loyalty returns to the Constitution and we threaten impeachment to anyone tampering with it whether a Bush or an Obama. It is time to do so.