"You cannot escape the responsibility of tomorrow by evading it today."
Abraham Lincoln
Shortly after President Trump’s televised signing the $2.3 trillion coronavirus economic stimulus bill, and out of the public eye, it was announced than he had issued a contemporaneous signing statement, “I do not understand, and my administration will not treat, this provision as permitting the S.I.G.P.R. (Special Inspector General for Pandemic Recovery), to issue reports to the Congress without the presidential supervision required.” He also took issue with the requirement to consult with Congress about “who should be the staff leaders of a newly formed executive branch committee charged with conducting oversight of the government’s response to the pandemic.”
Absent such oversight requirements, there would not have been sufficient support to pass the bipartisan bailout and stimulus bill. If the president found the required oversight language unacceptable, he could have vetoed the bill. He did not.
One should not be surprised by his action as Trump has a history of keeping potentially unfavorable or damaging information from inspector generals and others from reaching Congress, which he clearly does not accept as a co-equal branch of government … and the public.
There is no language in the Constitution, federal statutes on any common-law principal that unequivocally permits or prohibits signing statements … thus there is no legal justification for or enforcement significance to them.
The Presentment Clause of the Constitution (Article I, Section 7) states a president is only empowered to sign a Congressionally-passed bill, veto it in its entirety or do neither, in which event it automatically becomes law after ten days (Sundays excluded). Further, a president’s oath obligates a them to ”preserve, protect and defend the Constitution” and pursuant to Article II, Section 3, unambiguously requires the president to “take care that the laws be faithfully executed”.
No president has the right or authority to “cherry pick” which parts of Congressional enacted laws they sign will be obeyed and executed and those which they will not follow.
The first presidential signing statement was issued by James Monroe in 1822 in an attempt to clarify a law that commissioned certain military officers. From then until the 1980s, signing statements were generally rare and primarily used if a president felt a provision of a bill was clearly unconstitutional, to clarify potentially ambiguous language or to add laudatory comments … and even rarer when challenging statutory requirements of a law. Still, during this period, signing statements were criticized as undemocratic and unconstitutional.
Since then, presidents Reagan, GHW Bush, Clinton, GW Bush, Obama and Trump have collectively issued more than 1,000 signing statements nearly half of which challenged the statuary provisions of the bills they signed. Not surprisingly this is a period when the Executive has continually usurped many of the enumerated powers given exclusively to Congress.
While the Supreme Court has never opined on the constitutionality of signing statements per se, it affirmed the concept of presidential constraint in 1988 when President Clinton tried to eliminate section of the Balanced Budget Act of 1997 pursuant to authority granted the president in the Line Item Veto Act of 1996.
The Court nullified the statute writing, "in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. … [T]here is no constitutional authorization for the President to amend or repeal [statutes]." Its decisions were based on the language of the Presentment Clause in which there is no line-item veto power mentioned.
In 2006, the Court again squashed a signing statement in Hamdan v Rumsfeld, giving no weight to a signing statement in interpreting the Detainee Treatment Act of 2005.
It is imperative that Congress, and the House alone if the Republican Senate refuses, to immediately challenge the validity of Trump’s recent signing statement in court to require the Administration follow the language and intent of the law to the letter.
The health of our democratic and constitutional institutions is at stake.
