This won’t be too long and though it uses the Trump administration as its example it is not directed at him but at a line of modern presidencies that have blatantly violated the U.S. Constitution.
This week Trump signed the current Defense Appropriations Act, a law appropriating a record $716 billion for the Defense Department. This writing is not to dispute that legislation as excessive, bad fiscal policy or unhinged defense policy, though I think it is.
It is not to note — as I am about to — that although his peers in the Congress honored the ailing Sen. John McCain by naming the law in his honor, Trump, who hates McCain, did not so much as mention him during the public signing.
No, the purpose here is to comment, as reported by the New York Times, that in signing the law Trump claimed authority to ignore various mandates in the statute.
One such claim, as reported by the Times, pertains to a part of the new law that would bar spending any military funds on “any activity that recognizes the sovereignty of the Russian Federation Over Crimea”; another provision cited by Trump in his written statement requires the Department of Defense to create a senior civilian position responsible to develop uniform standards for counting and reducing the number of civilian deaths resulting from U.S. military operations.
The device asserting the right of the president to selectively enforce the law is called “a signing statement”. A brief historical search finds that there have been actions taken by American presidents as far back as James Monroe (1817-1825) intimating modern presidencies’ adoption and use of signing statements. But they are really a modern audacious extension of executive power.
This new assertion of presidential power through signing statements dates to the Ronald Reagan presidency. Every president since has used the mechanism to evade executive responsibility and impose the president’s will on laws the president is signing or has signed. Reagan did it. George H.W. Bush did it. Bill Clinton did it more than any other president the research says although the Times says George W. Bush holds that distinction. His successor, Barrack Obama, did it.
There has not yet been a direct challenge of this straight and continuing line of presidential assertion of the invented power, right and authority of presidents to sign new laws and at the same time selectively announce which parts of those laws they intend not to enforce or administer.
There should be and it should go all the way to the U.S. Supreme Court, even this court, even a court with Brett Kavanaugh confirmed as a member, which is going to happen no matter how much you or I may dislike that fact.
This court especially — whose “original intent majority” claims in all things to be bound by the original intent of the Constitution’s drafters — would have to rule that signing statements are on their face blatantly and unconstitutionally seize the exclusive Article I powers of Congress to write and enact laws.
Putting aside that the doctrine is false poppycock (did a whole piece on that as I recall), it isn’t even necessary to get into it to find that signing statements are unconstitutional.
Lawyers asking courts to interpret statutes, to interpret the Constitution itself, always rely on the argument that the plain language of the law, of the Constitution, should guide a court’s findings and rulings.
Here is the plain language of the U.S. Constitution at Article I, Section 7 concerning the enactments of laws.
“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 to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
There it is. The plain language of the United States Constitution. It is not language like the greatly contested 2nd Amendment, in which the placement of a comma has created a constitutional interpretation battle.
It is plain language that says who does what to make federal law.
If it meant for presidents to be able to nullify parts of laws even as they signed them, it would say so. It doesn’t.
It says the president can sign a bill into law. It says he can allow a bill to become law without his signature. It says he (or she going forward one day) can veto a law. It says the Congress can override a veto.
It says nothing, absolutely nothing about a president being allowed to nullify parts of a law he is signing. That power, right, authority of the presidency simply does not exist and you do not have to be a justice of the Supreme Court to understand or say that. You only have to be able to read Article I, Section 7.
In 2006 the American Bar Association said if presidents see problems in a bill like a constitutional violation they should veto and send it back to Congress.
There it is, that’s it and no president should have ever asserted the invented, unconstitutional privilege of signing statements.
A law pending presidential action is not a Chinese Menu from which the president gets to choose what he wants from Column A and Column B. It’s a whole meal he takes as delivered or not at all.
Someone somewhere, some person or organization, with standing to do so should pick a signing statement and sue for a ruling that presidents may not and are henceforth barred from using the practice. The organization with the greatest standing to file that suit it would seem is the Congress. It’s its sole power to make laws that is being challenged and subverted by signing statements.
As noted, Trump has done it, is doing it. But this one it not on him any more or less than it is on every one of his recent modern predecessors be they Democrat or Republican, be they presidents you liked or didn’t like — no matter your own political flavor.
Signing statements are usurpations of Congressional responsibility. They should be disallowed by the Supreme Court and consigned to the dustbin of bad governance.
Peeling the Onion 