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.
With his signing statement attached to the 2005 Detainee Treatment Act, Bush himself sought to create a legal basis for his administration's past and future criminality. In a nutshell, Bush signed into law a bill he had every intention of continuing to violate.
Bush, of course, had opposed John McCain's torture bill throughout the fall of 2005. But when the House and Senate passed McCain's amendment to the defense authorization bill by veto proof margins, Bush held a press conference on December 15 with McCain, announcing his support for the language explicitly saying that that the cruel, inhuman, and degrading treatment of detainees in US custody is illegal regardless of where they are held.
As the Boston Globe reported, that supposed compromise lasted just as long as it took for President Bush to issue his signing statement two weeks later on December 30. When it comes to what constitutes "cruel, inhuman, and degrading treatment of detainees," the President proclaimed that he indeed would be the decider:
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.
That shocking presidential power grab, along with Alberto Gonzales' lies to Congress in 2005 about the administration's torture policy, served to emasculate John McCain's amendment. It's no wonder he vowed of future legislation in a McCain presidency that he "would only sign it or veto."
Of course, John McCain's record is replete with principles abandoned and personal grudges set aside in the name of his own political ambition. McCain, after all, turned the other cheek in seeking Dubya's support for his 2008 run despite his smearing by Team Bush eight years earlier. So when the Senate in February 2008 voted to ban waterboarding by the CIA, it came as no surprise that John McCain sided with the Bush administration in allowing torture by American interrogators to continue.
While the American Bar Association called on George W. Bush and future presidents to stop using signing statements, labeling them "contrary to the rule of law and our constitutional separation of powers," Savage noted that other legal scholars "said that the bar association's view was too extreme because Congress sometimes passed important legislation that had minor constitutional flaws." In his memo, President Obama endorsed that latter view, reserving signing statements only for "concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire legislation."
In theory, John McCain should enthusiastically endorse President Obama's decision to view past signing statements with doubt, "placing an asterisk beside all of those issued by Mr. Bush and other former presidents." But as a recent New York Times profile of the Republican vanquished by Barack Obama would suggest, John McCain will always find something to complain about to remain on center stage.
(This piece also appears at Perrspectives.)