Signing Statements: Constitutional and Practical Limits

A constitutional issue largely hidden, except among specialized scholars, reached the public in 2006 when Charlie Savage of the Boston Globe wrote that President George W. 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."'Does the United States have two sets of laws, one performed publicly by Congress and the other conducted after the fact by executive officials?Is the second superior to the first?A dramatic illustration of executive claims had already occurred some months earlier, on December 30, 2005, when President Bush signed a defense appropriations bill that included a provision prohibiting cruel, inhuman, or degrading treatment or punishment of persons held in U.S. custody. 2 The purpose of the legislation was to prohibit torture of detainees.In signing the bill, Bush stated that the provision would be interpreted "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.", 3 In the U.S. constitutional system, what form of law is supposed to govern?The text of a statute or executive interpretations (necessarily done in secret) about how to interrogate detainees?May a President, through a signing statement, nullify or dilute a bill that both Houses had just passed and presented to him?Does that assertion of authority give him, in effect, an item veto?What happens to the President's constitutional obligation to "take Care that the Laws be faithfully executed"?4 If he found the bill constitutionally repugnant, why not veto it?Moreover, is this attention to signing statements excessive?Should not the focus be whether the President assures that the bill is * Specialist in Constitutional Law, Law Library, Library of Congress.Ph.D., New School for Social Research, 1967; B.S., College of William and Mary, 1956.Parts of this article are drawn from the author's Signing Statements: What to Do?, THE FORUM, Sept.