Harold Koh on Signing Statements
Let me follow up on Julian’s post and add that Harold Koh was equally derisive of signing statements during the Bush Administration. Here’s the transcript and video of an exchange between OLC nominee Dawn Johnsen and State Department Legal Adviser Harold Koh at the 2006 annual meeting of the American Constitution Society.
Just a few choice excerpts that will give you a taste of the general attitude about signing statements as expressed by Koh and Johnsen at that event:
Ms. Johnsen: … [T]he Bush administration’s initial argument typically is not the straightforward constitutional one, but instead that we have to twist the meaning of federal statutes beyond their clear meaning to match a very sweeping view of presidential power. So that will be the first part of our discussion talking about a few examples of what I view as this disregard for the rule of law… Let’s start with an issue that has been very much in the news in recent months: presidential signing statements…. Before the Bush administration, quite an obscure, I believe, document.
Ms. Johnsen: I think it would be useful to make this a little more concrete and actually read from a signing statement issued by President Bush, and I want to ask Harold first to comment on this particular one. So when President Bush signed this into law this is how he said he would enforce the McCain Amendment. “In a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and this commander-in-chief and consistent with the constitutional limitations on the judicial power.” That’s rather innocuous sounding I think on the surface, Harold. What’s the problem with that kind of a signing statement or this particular signing statement?
Mr. Koh: It’s like The New Yorker cartoon where the space aliens are coming out and writing a message in the sky, and two earthlings are looking at it, and one says “I’m not sure, but whatever it means, it can’t be good.” (Laughter) … The president has no line-item veto authority, so he can’t use a signing statement as a line-item veto, and … when there is no veto you can’t override it. You can’t override a signing statement…. So I think that at the end of the day I’m not sure what it means. … [T]he main purpose is to avoid predictability. It would lead to a point where there would be an as-applied constitutional challenge down the road, but whatever it means, it can’t be good.
Ms. Johnsen: Let me follow up with the argument that I often have heard or sometimes have heard in defense of signing statements along the lines that President Bush has used them. It’s better than a veto. Then, it’s actually more respectful of Congress to put into effect as much of the statute as possible, sign it into law, and just put these few limitations out there in the signing statement better than vetoing the whole thing and sending it back to Congress.
MR. Koh: Well, I was talking to an official of the Ford administration, who was telling me that Gerald Ford in his brief period as president did something like 56 vetoes. And the reason was that there was a lot of pork and he was eliminating the pork, so he would just veto it and send it back. I think that just a more upfront approach is if the president actually disagrees with something, he should veto it.
Mr. Koh: We don’t need graffiti on the McCain Amendment. It’s clear. Once it’s there, don’t add anything. If you’re adding anything, you’re trying to modify its effect. Why are you trying to modify its effect?