Signing the Constitution Away

Part of a Series

Last Sunday, the Boston Globe’s Charlie Savage broke a story that should be shocking to all of us had we not grown inured to the casual contempt toward the Constitution that the Bush administration deems to be its droite d’etat. Connecting dots in an incredibly dogged fashion over nearly 4,000 words, Savage reported that, "President 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."

At issue is the president’s preference to simply ignore the content of laws of which he does not approve via the vehicle of the “signing statement.” In a nutshell, these assert that the president isn’t actually bound by the laws he just put into effect. On Tuesday, Savage followed up his own reporting with a piece giving voice to Senate minority leader Harry Reid, Senator Patrick Leahy and Senator Edward M. Kennedy’s criticisms of the president’s actions. Both the April 30 and May 2 pieces were themselves follow-ups to Savage’s March 24 scoop in which he explained, “When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers.”

Taken together, Savage’s articles offer a sobering overview of the gross misuse of power the Bush administration has conducted out of the public eye. Amazingly, most of the mainstream media does not appear to think this is much of a story. According to a Nexus search, on January 14 of this year, the New York Times’ Adam Liptak appears to have first broached the subject in a story about how then-Supreme Court nominee Samuel Alito “helped to introduce” the concept of presidential signing statements during his stint as a lawyer in the Reagan administration. In 1986, Alito wrote a memo (which he distanced himself from under Congressional questioning) stating that ''our primary objective is to ensure that presidential signing statements assume their rightful place in the interpretation of legislation.'' Once this was accomplished, he continued, this would ''increase the power of the executive to shape the law.”

Liptak went on to say that, “The legal status of such signing statements remains unclear, but they are no longer novel. Every administration since the Reagan administration has issued them. President Bush has issued more than 100.”

While Liptak wasn’t wrong in writing that president Bush has issued more than 100 signing statements, the number is still a far cry from the 750 that Savage found in his Boston Globe story. On February 19, the Atlanta Journal-Constitution dug a little deeper into the story, reporting that, “The numbers also show how signing statements have increased, beginning under Reagan, who used them 71 times. The elder Bush produced 146 signing statements. Clinton used 105. The current president has surpassed the 500 mark.” Again, not wrong, but still woefully short of the mark.

Nexus shows that other than the Globe, the Times and the Journal-Constitution, most media outlets have completely ignored the story, other than brief op-eds about the subject that appeared in the Denver Post and the Palm Beach Post on April 2. MediaMatters for America discovered a March 24 United Press International article mentioned the signing statement issue, and other than “brief mentions in an April 1 San Francisco Chronicle article and an April 23 Washington Post article,” the story has seen a virtual media blackout. On television, the story has been discussed only by Keith Olbermann, who featured the Globe article on March 24.

This is another of those instances where citizens can say “Thank God for the Web.” Knight Professor of Constitutional Law and the First Amendment at Yale Law School, Jack M. Balkin, explains, "One effect of this policy … is that the president may be directing his subordinates to refuse to enforce a wide variety of federal laws in secret, with little or no public accountability, and with no effective way for the courts or Congress to hold him to his duties to enforce the law and 'take care that the laws be faithfully executed' under the Constitution." Another legal scholar, Glenn Greenwald, author of How Would a Patriot Act? notes, "What is entirely unprecedented — is that the administration's theories of its own power arrogate unto itself not just the right to refrain from enforcing such laws, but to act in violation of those laws, to engage in the very conduct which those laws criminalize, and they do so secretly and deceitfully, after signing the law and pretending that they are engaged in the democratic process.”

Still, if a tree falls on the front page of the Boston Globe and is heard only in the blogosophere, does that mean it hasn’t really fallen? In other words, will the Bush administration’s lawlessness continue unabated without even exciting any interest on the part of the mainstream media? Just how much contempt for Congress and the Constitution is too much?

Eric Alterman is a senior fellow at the Center for American Progress and the author of six books. His most recent, When Presidents Lie: A History of Official Deception and Its Consequences, is available in paperback from Penguin.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.


Eric Alterman

Senior Fellow

Explore The Series