President Bill Clinton raised many of the same issues in presidential signing statements as President George Bush, but without attracting the same criticism, says a Duke University law professor who has compared the two presidents' use of such statements.
In fact, it was Clinton's advisers in the Office of Legal Counsel who argued that the president had an obligation to guard against Congressional encroachments on executive power and could make that assertion in signing statements, said Duke law professor Curtis A. Bradley. At that time, the Office of Legal Counsel was headed by Bradley's Duke colleague Walter Dellinger.
Presidents sometimes issue signing statements at the time they sign legislation in order to comment on the legislation in some way --- for example, by expressing concerns about the constitutionality of one or more provisions in the legislation. Bradley said the primary objections that Bush has raised in statements, such as with the Detainee Treatment Act, have centered on alleged encroachments on executive power.
"One of the reasons that signing statements are so controversial is that they remind people of the Bush administration's broad claims of executive power," Bradley said.
On Monday, the American Bar Association released a special task force report alleging that many of the president's signing statements, with their assertions that certain laws do not apply to the executive branch, violate the separation of powers. On Wednesday, Sen. Arlen Specter, R-Pa., chair of the Senate Judiciary Committee, introduced a bill that would allow federal court challenges to the constitutionality of the positions taken by the president in his statements.
"Dellinger's office under Clinton concluded that the president did have the authority, under some circumstances, to decline to enforce a statute that he concluded was unconstitutional," Bradley said. "That's a very contentious debate at the moment because of claims being made outside of the signing statement debate about the extent to which the president in the 'War on Terror' has powers that Congress cannot regulate."
Such controversies as domestic surveillance and the "torture memos" are part of the debate as to whether the president can be, in some instances, immune from Congressional regulation, Bradley said.
Bradley is organizing an Aug. 21 panel discussion at the DukeLawSchool on signing statements. Dellinger will be on the panel, as will Bradley, Eric Posner of the University of Chicago Law School and Trevor Morrison of Cornel lLaw School.
Signing statements in and of themselves are not legally problematic and, in fact, can be helpful, Bradley said.
"There is value in getting the president to articulate his views early on, as opposed to just articulating them secretly in the executive office," Bradley said. "If signing statements were eliminated, it would not change what the president did, but it would make his views less public."