WASHINGTON (Friday, July 28) – U.S. Senate Senator Patrick Leahy, (D-Vt.), on Friday publicly called on President Bush to immediately stop abusing his constitutional authority through after-the-fact statements used to cherry-pick sections of laws that the Administration intends to enforce while ignoring others.   

In a speech delivered Friday morning on the floor of the U.S. Senate, and in a letter to the President sent earlier in the day, Leahy urged President Bush to stop his practice of misusing bill signing statements after Congress has passed laws, specifically noting the just-passed and just-signed reauthorization of the Voting Rights Act.  The President, who signed the reauthorization of the historic Voting Rights Act into law yesterday, is expected to issue a bill signing statement within the next week or so. 

Instead, Leahy called on the President to raise any concerns or questions the Administration has at the appropriate time – when the bills are being considered and debated in Congress.  “Rather than wait until a bill is passed, why not provide those of us elected to Congress with any constitutional concerns you may have regarding pending legislation at the earliest opportunity.  That would allow legislators to consider your concerns during the legislative process,” Leahy wrote.

Leahy, the ranking Democratic member of the Judiciary Committee, has long been concerned about the President’s misuse of the bill signing statements.  He first raised concerns in 2002, along with Republican Senator Charles Grassley, (R-Iowa), a fellow member of the panel, about the President’s bill signing statement on the Sarbanes-Oxley law combating corporate fraud.   The senators successfully objected to the President’s attempt to narrow a provision protecting corporate whistle-blowers in a way that would have afforded them very little protection. 

Below is Leahy’s letter to President Bush and his floor remarks delivered Friday morning. A pdf version is also available.

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July 28, 2006

President George W. Bush
The White House
1600 Pennsylvania Avenue
Washington, DC 20500

Dear President Bush:

This week a distinguished Task Force on Presidential Signing Statements and the Separation of Powers Doctrine of the American Bar Association reported.  The Task Force unanimously opposed a President’s issuance of signing statements to claim the authority to state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress as “contrary to the rule of law and our constitutional system of separation of powers.”  The Senate Judiciary Committee held a hearing on the matter last month.  I have spoken to the issue on a number of occasions, including this week on the floor of the Senate.

You have produced more signing statements containing challenges to bills you have signed into law than all prior Presidents in our history combined. I understand that you have produced more than 800 challenges to the bills you have signed into law, including many challenges related to your theory of the “unitary executive.”

I write to urge you to cease and desist from this practice. I urge you to recognize that our Constitution vests “All legislative Powers” in the Congress and that the President’s constitutional responsibility is to “take Care that the Laws be faithfully executed.”

I offer the following constructive suggestion.  Rather than wait until a bill is passed, why not provide those of us elected to Congress with any constitutional concerns you may have regarding pending legislation at the earliest opportunity.  That would allow legislators to consider your concerns during the legislative process.

Respectfully, 

PATRICK LEAHY
Ranking Democratic Member

cc: Hon. Alberto Gonzales

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Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee
On Presidential Signing Statements
July 28, 2006

Today I have sent a letter to President Bush urging him to cease and desist from his abuse of presidential signing statements.  Since I began drawing attention to these matters in 2002, the abuses have mounted.  Outstanding reporters, such as Charles Savage of the Boston Globe, have taken note of this important matter and reported on particular examples of egregious signing statements by which the President attempts to rewrite our laws.  Editorial boards across the country have been increasingly critical. 

This week a distinguished bipartisan Task Force of the American Bar Association released a unanimous report highly critical of this President’s practice as “contrary to the rule of law and our constitutional system of separation of powers.”  With today’s letter I point the President to a better way.  I urge him to raise any constitutional concerns he has with legislation with us in Congress while the legislation is pending and early in the process.  If we agree, we can work together to fix it.  But Congress writes the laws not the President. 

I speak on this topic again today because of its immediate importance to the reauthorization and revitalization to the Voting Rights Act that we unanimously passed last week and that the President signed into law yesterday. 

Yesterday I complimented the President for the words he used in the ceremony during which he signed the law. He sounded like a man fully on board and supportive of the findings, purposes and provisions of the law.  He said that his Administration would “vigorously enforce the provisions of this law and we will defend it in court.”  I commended him for his statement at the signing when the Judiciary Committee met yesterday.  Rumor is that next week the President will issue a presidential signing statement on the voting rights act reauthorization.  I do not want that to be one in the infamous line of signing statements where he says something else, seeks to undercut the law, reinterpret it or in any way reduce his responsibility for fully and vigorously enforcing the law and defending and upholding its provisions in legal challenges.

The Constitution places the law-making power, “All legislative Powers” in the Congress.  That is an Article I power.  We are at a pivotal moment in our Nation’s history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power.  This Administration is now routinely using signing statements to proclaim which parts of the law the President will follow, which parts he will ignore, and which he will reinterpret.  This is what I have called “cherry-picking” and it is wrong.

This President has also used signing statements to challenge laws banning torture, on affirmative action and prohibiting the censorship of scientific data.  In fact, time and again, this President has stood before the American people, signed laws enacted by their representatives in Congress, while all along crossing his fingers behind his back.  I do not want to see the reauthorization of the Voting Rights Act fall into that group of important enactments.  Under our constitutional system of government, when Congress passes a bill and the President signs it into law, that should be the end of the story.  At that moment the President’s constitutional duty is to “take Care that the Laws be faithfully executed.”  That is his duty, which he acknowledged yesterday, with respect to the Voting Rights Act. His Article II power, the executive Power, is to “execute” the laws, it is not a legislative Power. 

I remind this President and this Administration that the Constitution has more than one Article and that “All legislative Power” is vested in Congress, not some “unitary executive.”   When the President uses signing statements to unilaterally rewrite the laws enacted by the people’s representatives in Congress, he undermines the Rule of Law and our constitutional checks and balances designed to protect the rights of the American people.

These signing statements are a diabolical device but this President will continue to use and abuse them, if the Republican Congress lets him.  So far, this Congress has done exactly that.  Whether it is torture, warrantless eavesdropping on American citizens, or the unlawful treatment of military prisoners, this Republican-led Congress has been willing to turn a blind eye and rubber-stamp the questionable actions of this Administration, regardless of the consequences to our Constitution and civil liberties.

I mentioned that this issue of signing statements is something that has concerned me since 2002.  That was also the year that the Bush-Cheney Administration was writing secret legal memoranda seeking to justify another form of lawlessness by postulating an unfounded and unconstitutional commander-in-chief override to our laws in its justification of torture.  When that memorandum was exposed to light, the Administration had to withdraw it.  But we read in a front page story in The Washington Post today of another ominous development.  Apparently the Bush-Cheney Administration lawyers are meeting with Republicans in Congress to write immunities and amnesties into the law and to renege on this country’s commitment to human rights and the Geneva Conventions. 

This is evidence of another aspect of the lawlessness of the Bush-Cheney Administration.  It can only succeed if the Republican Congress continues to act as a wholly-owned subsidiary of the White House, instead of fulfilling its responsibility as a separate and independent branch of government intended by the Founders and established by the Constitution to serve as a check on the Executive. 

I helped write the war crimes law that the Bush-Cheney Administration is reportedly seeking to undermine.  In 1996 and 1997, we acted with the support of the Department of Defense, to include expressly in our laws culpability for violating human rights and the Geneva Conventions.   The United States has tried to serve as a world leader.  We have set standards for conduct that we demand that others around the world follow.  We cannot credibly ask others to meet standards we are unwilling to meet ourselves.  We have insisted on human rights and the rights of Americans, civilian and military, throughout the world. 

More recently, Abu Ghraib, reported detainee abuses, investigations into the deaths of detainees and civilians in war zones, indictments of American service personnel and contractors have all combined to stain America’s reputation and role.  We must not retreat from the fight for human rights.  We must not “cut and run” from our responsibilities as a world leader and the world’s only superpower. 

The American military men and women are the finest in the world.  They have been trained to respect human rights and do so.  They need not fear laws against brutality and inhumanity.  We helped develop and then endorsed the Geneva Conventions to set standards that protect our troops from harm.  To walk away from these protections would be to walk away from our men and women in uniform. Pulling a thread from this cloak of protection risks the beginning of a process of unraveling the entire fabric to the detriment of our troops and to our great shame.

It is disheartening to read that the highest law enforcement officer in the country is leading an effort to undercut the Rule of Law.  Rather than enforce the law, he is reportedly seeking to undermine it.  Instead of ignoring or changing laws we have long honored, our leaders should be obeying them, not obfuscating or creating loopholes in them. The Attorney General of the United States is not an in-house counsel to the President or consigliere to the Vice President and Secretary of State.  His constitutional responsibility is to enforce the law. 

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