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Last year, the country learned that President Bush has used “presidential signing statements” with unprecedented frequency, and in ways that appear to undermine our Constitution’s system of checks and balances. These statements, issued when a president signs a bill into law, can explain the president’s positions on the relevant issues. The great unanswered question from last year’s debate was whether President Bush was using signing statements for purely rhetorical effect, or whether he was instructing executive branch agencies to circumvent the will of the Congress. On Monday the Government Accountability Office issued a report that helps answer that question. GAO sampled 19 of the 160 appropriations provisions that President Bush challenged through signing statements in 2006. The report found that the executive branch failed to implement nearly one-third of the 19 provisions. There is nothing new about a president adding a “statement on signing” to legislation he has approved. Presidents have done so since this nation’s founding. They have thanked supporters, expounded on reasons for supporting legislation, and stated their satisfaction or dissatisfaction with congressional passage of a bill. Bush’s signing statements have covered a broad range of issues, including not only the so-called “war on terror” but also affirmative action programs, requirements of statistical compilations by executive agencies and establishment of basic qualifications for executive appointees. In his first term alone, Bush issued signing statements objecting to more than 500 provisions in upwards of 100 bills, nearly as many as the 575 signing statements issued by all 42 previous administrations combined. In the statements, this president often claims that the laws in question are unconstitutional, and even as he signs them into law he has indicated that he will enforce certain provisions only if he chooses to do so. Signing statements can be instructive in explaining complex legislation, or even in expressing presidential concern about a particular law. It is one thing to issue a signing statement explaining the president’s understanding of the law’s purpose; it is quite another, however, to use a statement to instruct the federal agencies of the executive branch to disregard the law. Article I of the Constitution gives Congress, not the president, the power to make the laws. Article II requires the president to take care that the laws be faithfully executed. The Constitution also gives the president the authority to veto laws that he or she finds objectionable. By signing a particular bill into law and then issuing a signing statement that declares that the executive branch will not give effect to it, or to a provision of it, the president effectively circumvents these constitutional requirements, and displaces the courts as the final expositor of the Constitution. While the GAO report found that courts, at least, rarely give these statements much if any weight, the damage may well be done long before the issue lands in court. Administrative agencies managed by presidential appointees rarely need to be told twice to ignore congressional intervention in their affairs. Even more troubling, these uses of signing statements may indicate a presidential belief that the executive branch can use the courts to enforce administration policies, but can otherwise act unilaterally. In this model, the president could continue to order wiretaps and surveillance even if a court has determined that these actions violate the Foreign Intelligence Surveillance Act. The executive branch would be prohibited from introducing the fruits of these illicit endeavors in court, but the snooping on private citizens � and the harm that it causes � would continue unabated. A major check on executive power goes by the boards. Despite the rampant partisanship in Washington, today’s threat to our system of checks and balances is not a partisan issue. The Constitution Project’s Coalition to Defend Checks and Balances � a bipartisan coalition of former government officials, policy experts, legal scholars and other prominent citizens � has expressed its deep concerns about the risk of permanent and unchecked presidential power, and the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government. The coalition recognizes that the glut of signing statements coming from the Oval Office today is as much a threat to our nation’s system of checks and balances as is the National Security Agency’s warrantless surveillance program, or the assertion that the executive branch can label people “enemy combatants” and detain them indefinitely without judicial review. It has called on President Bush (and future occupiers of the Oval Office) to abandon the uses of signing statements that undermine our system of checks and balances, and has also urged Congress to make unmistakably clear the link between a president’s inappropriate use of signing statements and the costs of doing so. Congress has a variety of means to hold presidents accountable when they ignore laws they do not like, and Congress must exercise them. America’s greatness is due in no small measure to our system of government in which power and authority are deliberately divided. The separation of powers is not a mere “technicality.” It is the centerpiece of our Constitution and our freedoms depend upon it. Virginia E. Sloan is the president of the Constitution Project, an independent think tank in Washington, D.C., devoted to promoting constitutional safeguards. Sloan previously served as counsel to the House of Representatives Judiciary Committee for 15 years. She is a graduate of UCLA School of Law and a member of the California Bar.

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