Under the US Constitution, Congress is the lawgiver, not the president. Thus, in presenting a bill or joint resolution to the president for his (her) consideration, Congress does not appear in the role of a petitioner, for whom any answer to its petition is possible, even appropriate.
In fact, the Constitution limits the president to three possible responses, when presented with a bill or joint resolution passed by both Houses of Congress. “If he approve [the measure,] he shall sign it, but if not, he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. [Art. I, Sec. 7].
The president also has a third option–doing nothing–when Congress presents him with a bill or joint resolution. This default position, however (doing nothing for ten days, Sundays excepted), results in the bill or joint resolution taking effect (in the case of a bill, becoming “a law”), “in like manner as if he had signed it”; “unless the Congress by their adjournment prevent its return, in which case it shall not be a law.” [Id.]
Thus, the ONLY writing the president does, or is permitted to do, as part of the legislative process: to sign his (her) name, indicating approval of bills and joint resolutions; and to submit veto messages, objecting to bills or joint resolutions. That’s all!
Yet, note how closely Mr. Bush’s “signing statement,” concerning the recent amendment, authored by Senator McCain, prohibiting torture and lesser forms of abuse, tracks Charles I’s initial response to the Petition of Right (1628). That Petition concerned among other things, arbitrary imprisonment; intermittent but widespread use of martial law; and forced loans and gifts, extorted by imprisonment or threat thereof.
First, Bush on the McCain Amendment, prohibiting torture and other abuse of prisoners in US custody:
“The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”
Now, Charles I’s response to the Petition of Right:
“The King willeth that right be done according to the laws and customs of the realm; and that the statutes be put in due execution, that the subject may have no just cause of complaint of any wrong, or oppression, contrary to their just rights and liberties, to the preservation whereof he holds himself in conscience as well obliged as of his just prerogative.” [p. 266]
Kindly note: in both cases, king and president treat their respective assemblies as mere supplicants, submitting petitions which they, Bush and Charles as lawgivers, are entitled to grant or deny, absolutely or with conditions. In both cases, Bush and Charles appear to GRANT the respective “petitions”–but grant them with conditions, which are legal and linguistic gobbledygook. In fact, one cannot tell, from Bush’s and Charles’ responses alone, what subjects those responses even treat!
As a statement of the executive’s future intentions, what do these “signing statements” tell us about Bush on torture and Charles I on the Petition of Right? One may properly infer, from the attempt to qualify approval; that both Bush and Charles I intend (or intended) to carry on pretty much after approval as before. Otherwise, why say anything more than “yes” to the legislation?
With the Petition of Right, the House of Commons went on to insist upon an unqualified “yes,” and finally got it–though Charles’ mental reservations, evidenced by his subsequent conduct, led eventually to civil war, his own death, and to the temporary abolition of the monarchy.
In American constitutional law, the president CANNOT condition his approval of proposed legislation. Once approved, by any of the methods constitutionally provided, the president has only to carry them out: “he shall take care that the laws be faithfully executed.” [Art. II, Sec. 3].
Under the US Constitution, then, these “signing statements” ought to be unconstitutional. They are surely improper, constitutionally speaking, as an attempt to recast the president as lawgiver, and Congress as petitioners for those laws. But Judge Alito appears already pledged to the use of presidential signing statements. What happens when the federal courts begin citing them in their decisions?
BRUCE TYLER WICK is an Ohio attorney and registered parliamentarian, celebrating 30 years in private practice. He was apparently among the first to recognize–surely, the first to argue–the UN Convention Against Torture (CAT), and all of its remedies, apply to the US and all persons subject to its jurisdiction. He can be reached at email@example.com.