As the New York Times revealed Monday, President Obama has instructed administration officials not to rely on the hundreds of signing statements issued by his predecessor. That move should please John McCain. After all, the Republican presidential candidate not only pledged "never to issue a signing statement." Back in 2005, McCain was doubled-crossed when President Bush issued a signing statement effectively negating the Detainee Treatment Act he authored.

In his Times piece, Charlie Savage (who earlier won a Pulitzer Prize while at the Boston Globe for breaking the signing statement story) reported that President Obama "ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute." Obama's worry is well-founded. After all, in number and nature, George W. Bush's use of signing statements to skirt laws passed by Congress is simply unprecedented:

Mr. Bush frequently used signing statements to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, claiming that the laws did not need to be enforced or obeyed as written. The laws he challenged included a torture ban and requirements that Congress be given detailed reports about how the Justice Department was using the counter-terrorism powers in the USA Patriot Act.

Dating back to the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. Presidents began doing so more frequently starting with the Reagan administration.

But Mr. Bush broke all records, using signing statements to challenge about 1,200 bill sections over his eight years in office -- about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.

But while President Obama did not today or during the 2008 presidential campaign foreswear the use of signing statement, his opponent did. In November 2007, John McCain announced:

"I would never issue a signing statement. It is wrong, and it should not be done."

McCain's unequivocal stand isn't just a matter of principle; it's quite personal. After all, when it came to the torture of terror detainees, George W. Bush stabbed John McCain in the back using the stiletto of a signing statement.

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Even in its last throes, the Bush administration continues its uninterrupted lawlessness. As two recent stories by Charlie Savage of the New York Times revealed, President Bush ignored Congressional statutes requiring privacy disclosures by his Department of Homeland Security and non-discrimination in hiring by faith-based groups receiving federal funds. In twice turning his back on the rule of law, Bush again resorted to his favorite executive power-grabbing tools, the signing statement and "interpretation" by the DOJ's Office of Legal Counsel.

Savage, who won a Pulitzer Prize for his 2006 expose of Bush's unprecedented use of signing statements, revealed last Friday that the President is at again. The White House informed Congress that it is bypassing a law passed as part of the package of recommendation from the 9/11 Commission. Designed to prevent political interference with the Department of Homeland Security:

The August 2007 law requires the agency’s chief privacy officer to report each year about Homeland Security activities that affect privacy, and requires that the reports be submitted directly to Congress “without any prior comment or amendment” by superiors at the department or the White House.

But in a move ranking the Republican on Senate Judiciary Committee Arlen Specter (R-PA) deemed "unconstitutional" and "dictatorial," DHS Secretary Michael Chertoff told Congress the administration would not "apply this provision strictly" because it infringed on the president’s powers. And as Savage detailed, President Bush used a signing statement to thwart the will of Congress - and the law of the land:

The Bush administration defended the decision not to obey the statute. Erik Ablin, a Justice Department spokesman, said its legal view was consistent with what presidents of both parties had long maintained.

Mr. Ablin also said the administration had told Congress that the provision would be unconstitutional, but Congress passed the legislation - which enacted recommendations of the 9/11 Commission - without making the requested change. So the administration decided to sign the bill and fix what Mr. Ablin called its "defects" later.

In condoning illegal discrimination in hiring by religious charities receiving funds from American taxpayers, President Bush turned to his Office of Legal Counsel.

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When President Bush receives a bill he doesn't like, instead of issuing a veto and challenging Congress to override him as School House Rock would have you believe, he issues a  private "signing statement" setting forth how he plans on interpreting the new law.  The House Armed Services Committee has just released a report on the practice and the conclusions are not encouraging.

From the report (.pdf)

The Bush Administration’s use of presidential signing statements to indicate disapproval of enacted legislation has generated confusion and has undermined congressional oversight of national defense policy, the House Armed Services Committee said in a report this week

“78 percent of President Bush’s more than 150 signing statements have raised constitutional or legal objections, compared with only 18% of all of President Clinton’s.”

“Signing statements may, if used appropriately, serve a legitimate function as a tool for continuing dialog between the President, Congress, and the public. On the other hand, signing statements may be a mechanism to expand executive authority at the expense of the legislature,” the Committee report said.

As the report makes clear, not all signing statements are bad. Sometimes they're useful and entirely appropriate, and sometimes they're used for naked power grabs that are nearly impossible to challenge. Well, it appears 78% of President Bush's fall into the latter category.

That begs the obvious question: Which laws has Bush challenged?

1. A provision in the 2008 defense bill that would make it illegal to build permanent bases in Iraq. The White House is currently pushing for 58 bases.

2. A bill outlawing the use of torture on detainees. McCain did a lot of grandstanding on the day this law "passed," but he hasn't said anything since about Bush's refusal to abide it.

3. A provision in the Patriot Act that requires the White House to inform Congress on how the FBI was using it's new spying powers. This one naturally led to the FBI severely abusing their power.

etc. etc. 

You know what happens after the President is called out on his lawbreaking, right? The White House should expect Congress' Strongly Worded Letter™ any day now.

[HT: Satyam]