WASHINGTON – The White House on Tuesday defended President Bush's prolific use of bill signing statements, saying they help him uphold the Constitution and defend the nation's security.
"There's this notion that the president is committing acts of civil disobedience, and he's not," said Bush's press secretary Tony Snow, speaking at the White House. "It's important for the president at least to express reservations about the constitutionality of certain provisions."
Snow spoke as Senate Judiciary Committe Chairman Arlen Specter opened hearings on Bush's use of bill signing statements saying he reserves the right to revise, interpret or disregard a measure on national security and consitutional grounds. Such statements have accompanied some 750 statutes passsed by Congress — including a ban on the torture of detainees and the renewal of the Patriot Act.
"There is a sense that the president has taken signing statements far beyond the customary purview," Specter, R-Pa., said.
"It's a challenge to the plain language of the Constitution," he added. "I'm interested to hear from the administration just what research they've done to lead them to the conclusion that they can cherry-pick."
A Justice Department lawyer defended Bush's statements.
"Even if there is modest increase, let me just suggest that it be viewed in light of current events and Congress' response to those events," said Justice Department lawyer Michelle Boardman. "The significance of legislation affecting national security has increased markedly since Sept. 11."
"Congress has been more active, the president has been more active," she added. "The separation of powers is working when we have this kind of dispute."
Specter's hearing is about more than the statements. He's been compiling a list of White House practices he bluntly says could amount to abuse of executive power — from warrantless domestic wiretapping program to sending officials to hearings who refuse to answer lawmakers' questions.
But the session also concerns countering any influence Bush's signing statements may have on court decisions regarding the new laws. Courts can be expected to look to the legislature for intent, not the executive, said Sen. John Cornyn, R-Texas., a former state judge.
"There's less here than meets the eye," Cornyn said. "The president is entitled to express his opinion. It's the courts that determine what the law is."
But Specter and his allies maintain that Bush is doing an end-run around the veto process. In his presidency's sixth year, Bush has yet to issue a single veto that could be overridden with a two-thirds majority in each house.
"The president is not required to (veto)," Boardman said.
"Of course he's not if he signs the bill," Specter snapped back.
Instead, Bush has issued hundreds of signing statements invoking his right to interpret or ignore laws on everything from whistleblower protections to how Congress oversees the Patriot Act.
"It means that the administration does not feel bound to enforce many new laws which Congress has passed," said David Golove, a New York University law professor who specializes in executive power issues. "This raises profound rule of law concerns. Do we have a functioning code of federal laws?"
Signing statements don't carry the force of law, and other presidents have issued them for administrative reasons, such as instructing an agency how to put a certain law into effect. They usually are inserted quietly into the federal record.
Bush's signing statement in March on Congress's renewal of the Patriot Act riled Specter and others who labored for months to craft a compromise between Senate and House versions, and what the White House wanted. Reluctantly, the administration relented on its objections to new congressional oversight of the way the FBI searches for terrorists.
Bush signed the bill with much flag-waving fanfare. Then he issued a signing statement asserting his right to bypass the oversight provisions in certain circumstances.
Specter isn't sure how much Congress can do to check the practice. "We may figure out a way to tie it to the confirmation process or budgetary matters," he said.