Congressman John Conyers posted a diary on Daily Kos Wednesday in which he said:
... Today we embark on a vigorous defense of our nation, reclaiming our constitution and reasserting the authority of Congress in our tripartite system of government.
Our hearing today is on presidential signing statements. So far, the Bush White House has issued nearly 150 signing statements challenging over 1,100 provisions of law.
More than all previous presidents combined.
What does this mean? We don’t know. When the White House issues a signing statement indicating they do not feel bound by an Act of Congress, we don’t know if they have actually acted to violate that law.
The signing statement surely indicates intent to ignore laws and contempt for Congress and the constitution, but the administration has never had to explain the extent to which it has acted upon these signing statements.
Having followed this egregious affront to the Constitution by Bush, I was anxious to learn of what transpired in the hearing. In keeping with tradition, the New York Times and the Washington Post conducted their own "oversight," by inadvertently omitting any report of the events in Congressman Conyers hearing. Other than Dan Froomkin's coverage in his White House Watch, the "papers of record" had no coverage, as far as I could tell. Fortunately, Fooomkin referenced two articles in other news sources.
Froomkin's article also includes a link to Rep. Conyers' Opening Statement in the Hearing on Signing Statements. In the statement, Congressman Conyers says:
... Many have joined me in expressing concern about the growing abuse of power within the Executive Branch. This President has tried to take unto himself absolute authority on issues such as surveillance, privacy, torture, enemy combatants, and rendition. Today we are taking up the very important item of Presidential signing statements, which supposedly give him the power to ignore duly enacted laws he has negotiated with Congress and signed into law.
All too often, the Administration has engaged in these practices under a veil of secrecy. This is a constitutional issue that no self-respecting federal legislature should tolerate. And so, we announce that out of this oversight hearing we will today begin an investigation of the specific use and abuse of presidential signing statements...
... We are talking here about systematic, extra-constitutional conduct by the White House. That conduct threatens to deprive the American people of one of the basic rights of any democracy – the right to elect representatives who determine what the law is, subject only to the President’s veto. That does not mean having a President sign those laws, but then say that he is free to carry them out or not, as only he sees fit.
The Boston Globe published an article reporting that:
... Deputy Assistant Attorney General John P. Elwood testified that the committee will find nothing amiss. He noted that Bush has repeatedly said his administration does not torture, and said that the Department of Justice has not held back any information from Congress about its use of the Patriot Act.
Elwood also 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, adding Bush has attached signing statements to about the same number of bills as his recent predecessors of both parties...
The last statement by Elwood is, of course, untrue. The Boston Globe article cites Christopher Kelley, a political science professor at Miami University in Ohio, who says that Bush has challenged 1,149 laws contained in 150 bills; all previous presidents combined have challenged about 600 total laws.
Karen Mathis, President of the American Bar Association, testified that if a president signs a bill and then instructs the executive branch that parts of that bill are unconstitutional, it is "contrary to the rule of law and our constitutional system of separation of powers." She also said that a president must either veto a bill and give Congress a chance to override their judgments, or they must sign it and obey all of it as written. John Dean reached the same conclusion in this article posted on FindLaw, "The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration."
Charles Ogletree, a Harvard Law School professor was another witness who testified that signing statements are problematic. He said that they are potentially dangerous even if the president does not violate the laws. Ogletree cited a December 2006 signing statement to a law banning the transfer of nuclear technology to India if it violates international non proliferation guidelines. Bush claimed that because he has authority to direct foreign affairs, he would view the ban as an "advisory."
In an article published by McClatchy Newspapers, William Douglas reported that Elwood said in his written statement that "Bush has never used signing statements as an attempt to 'override' enacted laws."
Douglas also reported that Nicholas Rosenkrantz, a Georgetown University law professor, said that the "brouhaha over presidential signing statements is largely unwarranted" and that other presidents have issued similar statements.
In another quote in the McClatchy Newspapers article, former Rep. Mickey Edwards (R-OK) said:
... Presidential signing statements may not sound like such a big deal, but they are declarations of the right of a president to be above the law, and that is a path that, once taken, will prove ultimately fatal to our democracy.
I agree with Mr Edwards.