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Mainstream, Vol XLV, No 40

Reality behind the Bush Smokescreen

Wednesday 26 September 2007, by A Gopalkrishnan

When a US President signs a bill into an Act, he may issue a written statement implying that he differs with certain provisions of law in that Act, due to reasons he indicates in the statement. Such documents, called “Presidential Signing Statements”, were used by several past Presidents mainly to clarify constitutional positions, but the more recent ones have increasingly contained one or more challenges or objections to the laws being signed. The objections are usually on the grounds that they infringe on the authority granted to the executive branch by the Constitution.

On December 18, 2006 President Bush signed the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 into law, based on the bill approved by both Houses of the US Congress. Just hours later, he also signed a “Presidential Signing Statement” for this bill, which was then promptly published in the US federal register. In this, he stated, “Section 103 of the (Hyde) Act purports to establish US policy with respect to various international affairs matters. My approval of the Act does not constitute my adoption of the statements of policy as US foreign policy… The executive branch shall construe such policy statements as advisory. Also… the executive branch shall construe Section 104(d)(2) of the Act as advisory … (and) shall construe provisions of the Act such as Sections. 104 and 109 in a manner consistent with the President’s Constitutional authority to protect and control information that could impair foreign relations.”

Interestingly, this presidential signing statement was used promptly by Pranab Mukherjee, India’s External Affairs Minister, who, just hours after its release in Washington, read it out verbatim to the Upper House of Parliament (Rajya Sabha), where the government was facing severe criticism during a debate on the deal. After where the government was facing severe criticism during a debate on the deal. After reading the statement, Mukherjee said: “That is the interpretation of the person who is instructed by law to implement the Act. That is the rationality in which the PM assured the House yesterday, despite knowing the extraneous and prescriptive provisions, not all but some, of the Hyde (Act).” Thus, Mukherjee successfully used the US signing statement as a means to temporarily shield the government from the sharp criticism of the Opposition parties and the scientific community.

The Indian public may be left with the impression that Bush has overruled the unacceptable sections of the Hyde Act as merely “advisory”, and will not abide by them while implementing the Indo-US deal. Thus, around the corner, we may get placatory arguments from both governments that the signing statement is binding on the US Congress and that India need not worry about the various adverse provisions in the Hyde Act. But, unlike vetoes, presidential signing statements are not part of the legislative process as set forth in the US Constitution, and have no legal effect. A signed law, like the Hyde Act, is still a law, regardless of what one President says in an accompanying signing statement.

In that case, can we trust that the statement will be enforceable over a long period, during which time several US Presidents and Congresses will come and go? The answer is a resounding “No”!

The rest of this article briefly examines various aspects of the presidential signing statement, and especially its validity and enforceability. Since I am basically a nuclear engineer, in doing this, I have relied not only on the exhaustive literature search I have carried out, but more importantly, on direct consultation I had with senior constitutional lawyers in both the US and India to verify the accuracy of my statements.

Perhaps the most learned US expert in presidential signing statements today is Prof Christopher S. Kelley of the Department of Political Science at the Miami University Oxford, Ohio. His doctoral thesis earlier and the past 12 years of his research interest have been on studying presidential signing statements. Regarding the signing statement of Bush in the case of the Hyde Act, Prof Kelley says: “Further, it is also quickly becoming clear that the challenges in the signing statement may not have much to do with separation of powers concerns, or concerns over presidential prerogatives, but rather domestic and foreign politics. But from the President’s point of view, he was catching a great deal of heat from India over what they perceived to be overly hostile language from the Congress, and language that does not treat their country as a sovereign nation. The signing statement was a way for President Bush to placate the Indian elites. So it gives us a nice insight into some of the pressures that drive a signing statement, and that it isn’t always just the protection of prerogatives despite what the language may say.”

Prof Charles J. Ogletree, Jr, Jesse Climenko Professor of Law at the Harvard Law at the Harvard Law School, in his testimony before the US Congress on January 31, 2007 has said: “One example of the potential dangers in the use of presidential signing statements is the recent passage of the Hyde Act 2006. The Indian Government considers the signing statement that accompanied the law as an indication of how the US plans to interpret those sections. Thus, even if signing statements are not enforceable, this raises the concern that foreign countries might have expectations that we will interpret laws as signing statements announce. Additionally, there is a real concern that a country like India would worry that a future President could choose to interpret the law differently.”

It is clear from these two comments that the US signing statement was more of a ploy to help cool down the tempers of Indian Opposition parties and senior scientists, and to help the Manmohan Singh Government in the face of the severe criticism it was facing, rather than any serious attempt to take on the US Congress!

When Bush says he considers a section in the Hyde Act as “advisory”, he is reserving a broad leeway for himself for a full spectrum of actions anywhere from “full compliance” to “no compliance” with that section. Furthermore, an incoming future President need not be bound by Bush’s signing statement, and if he wants he can decide to fully enforce the Hyde Act provisions.

Prof Kelley concurs with me on the above interpretation, and he has given me an example where President Clinton ignored the statements of earlier Presidents Reagan and George H. W. Bush, when he came to power. Thus, even with the Bush signing statement on the books, India can never be sure which provisions of the Act may be enforced on India at what time in the future.

As Prof Kelley reminds us, “The signing statement is only as powerful as Congress is willing to allow it. In the past, Congress has forced the President to back off on signing statements by vigorous oversight, by refusing to confirm appointees until the Administration backs off, or by cutting off financial appropriations. These and many more are tools Congress has at its disposal.” Therefore, assertive Congressional action against India, in future, cannot be overruled.

Very few really think that the Congress can successfully sue the President before the Supreme Court about a signing statement. However, on May 9, 2007, House Speaker Nancy Pelosi is reported to have said: “We can take the President to Court…. The President has made excessive use of signing statements and Congress is considering ways to respond to the executive branch’s over-reaching.” The American Bar Association (ABA) appointed a task force on presidential signing statements in June 2006, and its report has been unanimously accepted now as ABA policy. Specifically, the ABA has termed the misuse of presidential power through signing statements as contrary to the rule of law and the US constitutional system. In July 2006, Senator Arlene Specter introduced the “Presidential Signing Statements Act 2006” (S-3731) in the House Judiciary Committee.

This bill is likely to be re-introduced in the current 110th Congress, and it aims at curbing presidential misuse of such statements. Another bill, Congressional Law-making Authority Protection Act 2007 (H.R. 264), was introduced in January 2007, with the same objective. With the democrats in control of the Congress and Bush’s power and authority waning, such Congressional actions are bound to gain momentum.

From the above, one can see that the decks are heavily loaded against the enforceability of presidential signing statements. The MEA and PMO must study these aspects more fully before plunging headlong into the nuclear deal. The Hyde Act is the specific US law which governs the Indo-US nuclear deal and no presidential signing statement or Indian 123 Agreement can permanently or effectively dilute or over-ride any section of it.

(Courtesy : The Asian Age)

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