On signing statements and bad research

One of the limitations of the MSM is their need for brevity: they don't cite, they don't link. So it's no surprise that this rambling column by Air American's Isaac-Davy Aronson simply asserts - without citation or discussion - that "Bush has attached signing statements to more than 750 laws enacted by Congress since he took office, statements that say he has the right to disregard these laws when he sees fit." But, you know, it sounds right, goshdarnit, so who needs to back it up! According to this column by John Dean - no Bush fan he - Bush's first term yielded 107 signing statements, so I think it's somewhat unlikely that in his second term, Bush has issued the 643+ signing statements required to hit Aronson's 750 claim. Of course, if Aronson wants to come forward with something more than ipse dixit in support of his assertion, I will of course concede the point.

A google search suggests that the claim originated from an April 30, 2006 column in the Boston Globe by Charlie Savage. Savage doesn't cite anything, either, just asserts. People noticed. This website says that "[i]n an article published on April 30, 2006, the [Boston] Globe wrote that 'President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office.' [But i]n a clarification issued May 4, 2006, the Globe note that Bush had not really challenged 750 bills (which would have implied 750 signing statements), but 'has claimed the authority to bypass more than 750 statutes, which were provisions contained in about 125 bills.'" And by "statutes" it seems likely that it really means "provisions." Suddenly the claim is starting to look a lot thinner.

And even if the number really was 750, Aronson's ancillary claim that signing statements "say [t]he [President] has the right to disregard these laws when he sees fit," that stretches the truth even further. As Walter Dellinger, advising Bill Clinton in 1993 put it, "[one] function of Presidential signing statements is to guide and direct Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch. ... [Moreover] [s]igning statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality)...."

In the column linked above, John Dean scolds that "a president who finds part of a bill unconstitutional, ought to veto the entire bill -- not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill." As a general matter, I agree with that, but it's too abstract. What if a handful of provisions of a mammoth bill are susceptible to two constructions, one of which raises constitutional concerns and one of which does not? courts face this problem often, and as noted here apply a canon of constitutional avoidance: as Justice Breyer put it in Zadvydas v. Davis, it's "[a] rule of statutory construction ... [that] where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." So it is with signing statements. Of course, a president faced with a bill he believes to be unconstitutional ought to veto it, and ought to do so no matter what Congress (or even the Supreme Court) thinks. That's his or her prerogative - and their burden. What about a President faced with a bill which is generally sound, but that has a few clauses that raise constitutional difficulties, where those few provisions cannot in good faith be susceptible to a construction that renders them constitutional? That's a harder question; I would say the President ought to veto, but some might disagree with me and let it wash out in litigation (this has been Bush's strategy on several bills, including BCRA, and personally I think it's dereliction of duty). But when a President is presented a bill which is generally sound, has a few clauses that raise constitutional difficulties, where those few provisions are in good faith susceptible to a construction by which they're constitutional, that seems an eminently valid use of a signing statement, and is far more innocuous than critics like Dean, Aronson and Savage - and even serious critics - suggest for the same reason the canon of constitutional avoidance is innocuous: if the court (or the President) adopts a reading Congress disagrees with, Congress can force the issue and pass a new statute clarifying the ambiguity.

The format of the MSM discourages adequately citing sources for factual assertions, which makes trust the MSM's stock in trade. that being the case, you'd think they'd be more scrupulous about fact checking in protection of that resource. Signing statements themselves are a hotly debated issue, but the number of them issued is an empirical question, and Aronson got it wrong.