Signing Statements Are Back, But With A Twist

Attached to the military appropriations bill signed by the President last month included the first signing statement since the new Congress came into power, and the details of it should cheer those who think that the Democratic takeover have achieved absolutely nothing. Because this is a kinder and gentler signing statement, a less unitary executive, who just allowed through a provision against permanent bases in Iraq which a Democratic successor would surely be pressured to enforce.

Pulitzer Prize winner Charlie Savage has the report.

In the statement, which the White House filed in the Federal Register on Nov. 13 but which initially attracted little attention, Bush challenged several requirements to provide information to Congress.

For example, one law Bush targeted requires him to give oversight committees notice before transferring US military equipment to United Nations peacekeepers.

Bush also challenged a new law that limits his ability to transfer funds lawmakers approved for one purpose to start a different program, as well as a law requiring him to keep in place an existing command structure for the Navy's Pacific fleet.

Obviously, it's distressing that Bush has reverted to the practice of trying to nullify Congressionally-mandated statutes. But look at the language that he has used to reject these portions of the law.

"The Act contains certain provisions identical to those found in prior bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities," Bush's statement says.

"To avoid such potential infirmities, I will interpret and construe such provisions in the same manner as I have previously stated in regard to those provisions."

This is not the "I am the commander in chief and the unitary executive and what I say goes" President of years past. This is a meeker statement, simply claiming that there are inconsistencies in the record between these and other statutes. This seems to me like something fully within the purview of the judiciary to determine which language takes precedent. And in addition, it's far less confrontational and far easier to be challenged.

And this is the real surprise:

In a further sign that the White House adopted a muted tone, the new signing statement also said nothing about two higher-profile provisions in the bill that limit presidential power: One law prohibits the military from using foreign intelligence information that was collected illegally, and the other forbids expending funds to establish permanent US military bases in Iraq.

As lawmakers drafted the bill earlier this year, the White House warned Congress that the illegal intelligence and Iraq-base provisions "impermissibly" infringed "on the president's constitutional authority" over national security and foreign affairs.

The complaints about constraining executive power are gone. The reign of President as emperor, picking and choosing the laws he likes, are gone.

Now, this is not to say that the President has suddenly decided to follow the Constitution. If he wants to appropriate funds toward building permanent bases in Iraq, he very well might. He probably doesn't have to, since most of them are already built. But the statute is now official US law. Same with preventing the military from using "illegally collected" intelligence information. And so it will not only be applied to this President, but most importantly the NEXT President.

The Democratic Congress has obviously been something of a disappointment. But you have to put this in perspective. Change in Washington moves at a glacial pace. Despite this, they have passed the first minimum wage increase in a decade, the largest student loan reform maybe ever, implemented the 9/11 Commission recommendations, instituted needed ethics reforms, and more. This coming week they will take up an energy bill that will raise fuel efficiency by 40% and add a renewable energy standard for electricity.

Now, we're seeing that the focus on Constitutional issues has actually backed up the most radical Administration in history from further destruction. We've seen that in the resignation of all the government officials engaged in some of the most horrific practices. We've seen that in the reinstitution of Senate oversight in the US Attorney process. And now, we've seen it in the tempering of signing statements. Maybe the dark legacy of increasing executive power will be stalled, after all.

This is in no way redeems the Democratic Congress for all their missteps; if anything, the man most responsible for this backtrack on signing statements is the author Charlie Savage, who did a great deal to put this in public view. But it should be a reminder that elections actually do have consequences.