Presidential Power:
The Signing Statement

By Alan Shapiro

To the Teacher:

The "signing statement" has been an obscure aspect of presidential behavior since early in the 19th century. But only President Bush's signing statements have generated a controversy over presidential power.

You might begin by asking students, "What is a presidential signing statement?" -- a question that will probably produce no response.

The first student reading below details the background of the signing statement Bush attached to the Detainee Treatment Act. The second reading provides a brief history of signing statements, some background on Supreme Court rulings on presidential powers and a discussion of the pros and cons of President Bush's signing statements. Discussion questions and suggested student activities follow.

Student Reading 1:
Action to ban abuse and torture of American prisoners

A group of high school students handed President Bush an unexpected letter during their meeting with him at the White House on June 25. “We asked him to remove the signing statement attached to the anti-torture bill, which would have allowed presidential power to make exemptions to the ban on torture,” said student Mari Oye from Wellesley, MA. “I really feel strongly about this issue and also about the treatment of some Arab- and Muslim-Americans after September 11th.”

The "signing statement" Oye referred to has a history stretching back to the late fall and early winter of 2005. President Bush expected Congress to pass a Defense Appropriations Bill that provided billions of dollars for the Iraq war. He opposed an effort by Senator John McCain, a fellow Republican, to attach to that bill an amendment, the Detainee Treatment Act, banning "all cruel, inhumane and degrading treatment of detainees."

Photographs and other revelations about American treatment of prisoners in Abu Ghraib, Iraq, during the spring of 2004 had outraged many Americans and damaged the country's reputation around the world. Even worse news came in the following months as congressional investigators, the International Red Cross, human rights groups, and even the FBI reported that prisoner abuse and torture were not confined to Abu Ghraib or to a handful of U.S. Army guards. In fact, we learned, abuse and torture of prisoners were epidemic at Guantanamo Bay, Cuba; at Bagram and other detention centers in Afghanistan; and at Camp Cropper and more than a dozen other detention centers in Iraq.

Senator McCain moved to ban this torture and abuse. President Bush countered by arguing that "America stands against and will not tolerate torture." He also declared (on June 26, 2004) that "The United States also remains steadfastly committed to upholding the Geneva Conventions." These conventions ban all forms of prisoner mistreatment. So does the Universal Declaration of Human Rights; the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the U.S. War Crimes Act -- all of which Congress approved over the past 60 years.

Nevertheless, the president disapproved of the McCain amendment. The two met. Senator McCain agreed to modify the measure to allow an interrogator who is accused of prisoner mistreatment to claim that he "did not know that the practices were unlawful." He also agreed to Senator Lindsay Graham's amendment specifying that Guantanamo prisoners cannot invoke the constitutional right to habeas corpus since they are not legally on American soil and are not American citizens. (Habeas corpus allows detainees to seek relief from unlawful imprisonment through legal action.)

Just before Christmas, 2005, President Bush and Senator McCain appeared together in the Oval Office to announce joint support of the amended bill. The president said that the Detainee Treatment Act makes it "clear to the world that this government does not torture."

The Senate approved the bill 90-9.

However, when he signed the act into law, President Bush added the following "signing statement: "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 limits on the judicial power, which will assist in achieving the shared objective of the Congress and President, evidenced in Title X, of protecting the American people from further terrorist attacks."

In short, the president declared he has the power to "construe," or to determine, how to understand, the Detainee Treatment Act as he thinks appropriate. He has said, for example, that the CIA needs to be able to use "alternative interrogation techniques." The president has not defined what those alternative techniques are.

In June 2007, the Government Accountability Office, Congress's investigative arm, reported that it had studied 19 of Bush's 160 signing statements. The GAO investigators found that in 6 of the 19 cases they studied, the Bush administration did not follow the law as approved by Congress. For example, they found, Bush had not carried out a law requiring the Pentagon to include justifications for Iraq war spending in its budget request.

"Federal law is not some buffet line where the president can pick parts of some laws to follow and others to reject," said Senator Robert Byrd, Democrat of Virginia. But White House spokesman Tony Fratto maintained that "The executive branch has an obligation to remain without constitutional limits. The point of the signing statement is to advise where the executive sees those limits."

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Given the various international and congressional bans on abuse and torture, why do you think Senator McCain thought another was necessary?

3. How do you evaluate the two modifications of the McCain torture ban that McCain approved?

4. Does the Detainee Treatment Act now make it clear that the U.S. does not torture? Why or why not?

5. All U.S. interrogators are instructed about what is permissible in an interrogation. Apparently, CIA interrogators may follow different regulations. How would you interpret "alternative interrogation techniques"?

6. Why do you suppose that President Bush added a signing statement to the Detainee Treatment Act?

7. Why do you suppose that President Bush added a signing statement to a law requiring the Pentagon to explain Iraq war spending?

Student Reading 2:
Signing Statements

In statements about a president's powers, the Constitution says nothing about "signing statements." Nor has the Supreme Court ever made a clear-cut ruling on them.

Beginning with President James Monroe (1817-1825), and for the next 175 years, presidents issued several hundred such statements. Presidents have included them when they signed congressional bills into laws, usually to clarify or to express their satisfaction.

No president in those years maintained in a signing statement that he had the power to overrule a law approved by Congress. Only the Supreme Court has the power to do that, wrote Chief Justice John Marshall, ruling in 1803 on Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." He cited Article III of the Constitution to support his argument. Though that article does not state explicitly that the Supreme Court can void congressional legislation, Justice Marshall's claim of that authority has been generally accepted ever since.

For example, during an undeclared war with France, Congress authorized the president to order the seizure of ships heading for French ports. In 1799, President Adams ordered the U.S. Navy to seize the "Flying Fish," a Danish vessel sailing from a French port. The Danish owner sued, and in 1804 Justice Marshall declared the president's behavior "unlawful."

In 1952 during the Korean War, steel workers threatened a strike. President Harry Truman attempted to seize the steel mills to prevent a strike on the grounds that steel was essential for the war. But the Supreme Court ruled that he could not because Congress had decided upon another method of handling the situation.

But The Boston Globe reported that President Bush "has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution." (Boston Globe, 4/30/06, www.bostonglobe.com)

Bush supporters cite the Constitution's statements about presidential power: "The executive power shall be vested in a president of the United States of America." (Article II, Sec.1) "…he shall take care that the laws be faithfully executed…." (Article II, Sec.3) To be "vested" is to be "clothed," so to speak, with all the authority or rights of the executive branch. To "take care" is to fulfill his duties properly in carrying out all laws. Bush's defenders argue that the "vesting" and "take care" clauses of the Constitution are the basis for a "unitary executive theory," which, they maintain, gives a president the power to restrict congressional interference in what he judges to be his responsibilities.

Opponents of Bush's signing statements also cite the Constitution. "All legislative powers herein granted shall be vested in a Congress of the United States…." (Article I, Sec. 1) "Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections…." (Article I, Sec.7) The House of Representatives and the Senate make all laws. The only way provided in the Constitution for the president to express his objections to a law is to veto it. After a veto and congressional reconsideration, if "two-thirds" of each house approve anyway, "it shall become law." (Article I, Sec. 7)

There has been bipartisan objection to President Bush's signing statements. Arlen Specter, then Republican chair of the Senate Judiciary Committee, said last year, "There is a sense that the president has taken the signing statement far beyond the customary purviews." His successor, Senator Patrick Leahy, said, "I've never seen anything like it….[It is] a grave threat to the system of checks and balances." (www.washingtonpost.com, 6/27/06

House Judiciary Committee chairman John Conyers, Jr. of Michigan has begun an investigation into whether President Bush has violated any of the laws his signing statements indicate he might overrule. In addition to the Detainee Treatment Act, they include:

• Congressional reauthorization of the Patriot Act. Congress included a provision that requires the Justice Department to report to Congress by certain dates how the FBI is using this law to search homes and seize papers. The president's signing statement declares he can order the Justice Department to withhold information he decides would harm national security and executive branch operations.
  
  
• A Congressional request that uncensored science information prepared by government researchers and scientists be sent to legislators without delay. The president's signing statement declares he can withhold information he decides would harm national security and executive branch operations.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What do the following say to you about the powers of a president: The Marshall decision in Marbury v. Madison? The "Flying Fish" case? President Truman's effort to seize U.S. steel mills?

3. Explain the case for President Bush's signing statements. What is the case against them?

4. Why might President Bush object to Justice Department reports to Congress on searching homes and the like? Why might he object to a congressional request for uncensored science information prepared by government officials? How do you evaluate his objection in each case?

For inquiry

1. Investigate the signing statements of other presidents and compare them with President Bush's.

2. Investigate the results from the Conyers' committee investigation into signing statements.

For an informal poll

It appears that very few Americans are aware of President Bush's signing statements. Have students prepare a short questionnaire about the signing statement issue for family members and friends. (If other students are included in the poll, a method needs to be devised to prevent soliciting a student more than once.) In class, tally and discuss the results.

For citizenship

Following completion of the poll, discuss with students ways in which they might inform other students about presidential signing statements. See "Teaching Social Responsibility," which is available on this website for suggestions.

For writing

Write a well-developed essay in which you discuss your understanding of the separation of powers and checks and balances in the U.S. government, why they were established in the Constitution, and their relationship to President Bush's signing statements.

Write a well-developed essay in which you support or oppose one of the following quotations:

• "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, appointed, or elective, may justly be pronounced the very definition of tyranny." (James Madison, The Federalist, #47)
  
  
• "Deputy Assistant Attorney General John Elwood rejected the notion that Bush's signing statements represent a 'power grab.' Whatever power the Constitution gives the president, he said, exists regardless of the president's decision to note it in a signing statement. 'Congress has no power to enact unconstitutional laws . . . whether the president issues a signing statement or not,' Elwood said." (Boston Globe, 2/1/07)

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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