By Behreandt, Dennis
The New American , Vol. 23, No. 3
In his letters concerning "An Examination of the Constitution of the United States" that appeared in the Philadelphia Independent Gazetteer from September 26-29, 1788, the early American industrialist Tench Coxe--who also served as a delegate to the Continental Congress--noted that the president's power regarding legislation "amounts to no more, than a serious duty imposed upon him to request both houses to reconsider any matter on which he entertains doubts or feels apprehensions."
In this opinion Coxe was in keeping with the Founding Fathers generally, who held that the president exercised only a negative power over legislation. This was described by Alexander Hamilton in The Federalist, No. 73. There Hamilton observed that, through the veto, the president could exercise only a "qualified negative ... upon the acts or resolutions of the two houses of the legislature," by which he meant that the president has only the "power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body."
George W. Bush, it seems, disagrees with the Coxe, Hamilton, and the Founding Fathers generally on this point. Instead, his administration has adopted the use of the signing statement, affixed to legislation when signed into law, as a means by which the legislative power may be more fully exercised by the office of the president, despite and against the Constitution's sole delegation of this power to Congress.
According to the Houston Chronicle and the Associated Press, President Bush has been the most prolific president in history when it comes to issuing signing statements. An analysis by Attorney Joyce A. Green found that "147 signing statements challenge over 1,140 federal laws." Bush will likely issue many more before leaving office. That number alone, however, would not be significant if his signing statements conformed to past presidential practice, wherein they were used in a relatively innocuous fashion, such as to congratulate those who passed a particular bill or to denote the importance of a particular new law. In a dangerous and revolutionary reapplication of the practice, however, President Bush has used signing statements to indicate how laws should be interpreted and enforced.
Among recent examples, the most egregious is the signing statement the president affixed to the postal reform legislation he signed into law on December 20, 2006. That law upholds the long-cherished notion that the government may not open mail without a warrant. The legislation specifies: "The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection." Moreover, it asserts: "No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee."
Despite the law's clearly worded proscription against government snooping, through a signing statement the Bush administration turned the law on its head. In his signing statement the president asserted that the executive branch would construe this section of the law "in a manner consistent ... with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection." Essentially, with the stroke of a pen the president exercised unconstitutional legislative authority granting the executive branch surveillance powers explicitly forbidden by the law passed by Congress.
The White House defended the signing statement on the new postal law, arguing that it only reasserted existing law in order to clarify the new law. …