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Is President Bush defying Congress? That is what critics say he's doing when he signs bills into law but also issues "signing statements" challenging the constitutionality of provisions in those laws.

Bush has issued signing statements for more than 100 laws in which he argues that Congress has stepped unconstitutionally on a variety of presidential powers, from his role as commander-in-chief to his authority to conduct foreign policy to his control of the executive branch. The pronouncements imply that his administration isn't going to carry out any such mandates.

Critics say that the signing statements are being used to counter congressional attempts to direct executive branch actions, part of a broader Bush administration effort to expand executive power.

Signing statements gained prominence in December, when Bush issued a declaration in response to an amendment banning torture of prisoners in U.S. custody. The law's language had been brokered with the White House by Sen. John McCain, R-Ariz., but Bush declared he would construe the provision "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."

Though the administration says it does not use torture, critics said the statement gave the executive branch wiggle room to torture prisoners.

Criticism of signing statements has been rising ever since. The Boston Globe published a series of articles beginning in April questioning the use of the statements on some 750 provisions. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., wants Attorney General Alberto Gonzales to come to Capitol Hill to explain the use of signing statements. "The president has asserted his authority to pick and choose what he likes and what he doesn't like in legislation," Specter said on the Senate floor on May 26.

The American Bar Association has launched a skeptical review. "It is an issue that really implicates the very foundation of our democracy," ABA President Michael Greco, a Boston lawyer, said in an interview. "The Founders created equilibrium among the three branches, and there is concern that the executive branch has created an imbalance in that equilibrium."

The administration's interpretation of part of the torture amendment, concerning whether prisoners at Guantanamo Bay have the right to appeal their detention in federal court, is being considered by the Supreme Court and lower courts -- which have never used a signing statement to determine a statute's meaning.

Meanwhile, however, most of the signing statements issued by Bush -- and past presidents, for that matter -- seem largely symbolic and do not necessarily change how agencies implement legislation, according to some scholars and a review of the implementation of several statements. Though the president's lawyers may raise legal arguments against congressional actions, bureaucrats across the federal government are reluctant to challenge the appropriators and committee chiefs who control their budgets.

For the past three years, for example, Congress has included in major appropriations bills a provision blocking funding for an Office of Personnel Management review of the fairly common practice of "legislative branch details," in which executive branch employees spend as long as a year working in the Capitol Hill offices of members of Congress or congressional committees.

In a signing statement, the Bush administration seemed to suggest that it would conduct the review of details anyway, explaining that the provision would be construed "consistent with the president's constitutional authority to supervise the unitary executive branch and as commander-in-chief, and recognizing that the president cannot be compelled to give up the authority of his office as a condition of receiving the funds necessary to carry out the duties of his office."

Despite those assertions of authority, OPM abandoned its effort to monitor legislative branch details. "It just never took effect," OPM spokesman Michael Orenstein said.

Bush also objected to a provision in last year's highway bill that instructed the Transportation Department to consult with lawmakers on appointments to a motorcycle safety council. Bush said he would interpret the provision "as calling for, but not mandating, such consultation." Nonetheless, the Transportation Department has been accepting advice from members of Congress on who should serve on the panel, letters from lawmakers to the department show.

Several presidential and legal scholars said that the signing statements are best viewed as part of the constant struggle for supremacy between the legislative and executive branches, and that they usually serve as signals of principle that the president sends to Congress in that struggle.

But on an informal basis, the agencies under the president and the committees that oversee them tend to cooperate on the implementation of policy. Louis Fisher, a specialist at the law library at the Library of Congress, said that Justice Department lawyers, the Office of Management and Budget, and the White House may issue such broad policy statements, but "the rest of government is just trying to get things done."

Fisher, formerly an analyst at the Congressional Research Service, wrote in a November 2005 CRS report that congressional committees continue to exercise significant control over the actions of federal agencies, despite Bush's objections and those of past presidents who have argued that the agencies report to the White House, not to Capitol Hill.

In 1983, the Supreme Court ruled that Congress could not force agencies to clear their actions with a congressional committee because such a requirement would violate separation-of-powers rules.

The next year, appropriations committees included seven provisions in laws requiring agencies, NASA among them, to seek prior approval of actions from the committees. President Reagan implied that he would ignore the requirement. The House Appropriations Committee retaliated, saying that it would simply withhold money from NASA.

Then-NASA Administrator James Beggs and appropriators ended up working out an informal procedure in which the appropriators would still get to pre-approve NASA decisions. Most agencies continue to operate under such arrangements with appropriations and authorizing committees; Fisher found that the budget manuals for the departments of Defense, Energy, Transportation, and Treasury all instruct agency officials to make sure that congressional committees approve of their plans.

"If Congress wants to batter the agency head, they're going to get what they want," Fisher said. "All the legal arguments melt away."

Christopher Kelley, a political scientist at Miami University of Ohio, said the signing statements are intended to influence executive branch officials perhaps even more than they are meant to influence courts. "Starting with the Reagan administration, [presidents] have put a lot of effort in trying to get the bureaucracy to bend toward the president's position," Kelley said.

Kelley said that agencies may not follow through on some statements that are not particularly important to the administration, but they do heed others. In 2002, for example, Bush announced in the signing statement for the Sarbanes-Oxley corporate accountability law that he would interpret whistle-blower rights more narrowly than Congress had written them.

Labor Department Solicitor Eugene Scalia followed through on the president's interpretation, issuing a brief adhering to Bush's guidelines. The department backed down, however, after pressure from lawmakers (and Scalia's departure from Labor).

"In most of the cases where [presidents] make a challenge, most of them are not carried out," Kelley said. "They pick their battles."

A Bush administration background paper says that presidents going back to James Monroe have issued signing statements, describing the practice as "an ordinary part of a respectful constitutional 'dialogue' between the branches." But Rep. Barney Frank, D-Mass., introduced a bill at the end of May that would create a procedure for Congress to overrule signing statements that challenge legislation.

Frank said statements declaring portions of law unconstitutional are an abuse of power. "If we do something that's unconstitutional, he has two constitutional options: First, veto the bill. Secondly, arrange for it to go to court," Frank said in an interview.

Meanwhile, Bradley Patterson, a presidential scholar and a National Academy of Public Administration fellow, said the signing statements are part of a natural separation-of-powers struggle. "The president and the Congress are constantly conflicting and engaged in a massive and ancient conflict of influence and power," Patterson said. "It's kind of a game they're playing. Congress writes its statement in the law, the president writes his statement in the signing statement."

And the bureaucrats who actually implement the laws are caught in between.

COMMENTS

• If you ever had the idea that George Bush thinks he is King of the United States, this article should help convince you, he does think he is the King. Nothing in the article tells me the man has a sane thought at any point in the day. You can't tell him anything, he is always right. The question I want to know is: Is there anything legal about a signing statement? One more, why is this question not in the Supreme Court? Oh, I lost my mind -- he controls them too. rds Posted June 19, 2006 6:38 PM
• What an interesting article. This administration likes to pretend that it models itself after corporate America. So let’s build a corporate analogy. The American people are shareholders who elect Congress as our primary representatives on a Board of Directors and a president to defend and uphold the Constitution of the United States as CEO under our country's corporate charter. Congress is the Board of Directors and the President is the CEO. One of the primary tasks of Congress (Board of Directors) is to determine the budget of the United States and where that money should be allocated. This CEO of this corporation refuses to respect the wishes of the Board of Directors elected by the shareholders. The CEO refuses to keep the Board of Directors informed of his actions. Time and time again the CEO snubs the Board, and acts as an independent agent in violation of the Constitution of the United States -- the equivalent of a corporate charter. The shareholders have been polled and this CEO has scored under 30 percent and we shareholders believe that he is doing a very poor job. I believe the employees of this corporation would give the CEO an even lower rating. The Charter is clear on how to handle a "cowboy" who violates the Charter. This is a bipartisan issue and goes to the very heart of the management and viability of the corporation. It is time for this Board of Directors to reassert itself and act for the good of the corporation called the United States of America Inc. If the analogy doesn't work perhaps we aren't a corporation after all. GovExec.com reader Posted June 19, 2006 8:07 AM