Fox's Kendall adopted misleading Bush administration talking point on signing statements

On the June 27 edition of Fox News' Special Report, Fox News general assignment reporter Megyn Kendall adopted the Bush administration's misleading defense of its controversial and frequent use of "signing statements" to challenge newly passed laws -- that throughout history, "presidents have often issued signing statements when they sign a bill into law." But Kendall failed to mention that while presidents have issued signing statements before, Bush has, in his signing statements, challenged more individual statutes than all other previous presidents combined, and Bush has far more frequently used signing statements "to waive his obligation to follow" even clear provisions in the law he just signed, as The Boston Globe has noted.

Kendall began her report, which was prompted by a June 27 Senate Judiciary Committee hearing on the president's use of signing statements, by stating that "[f]rom James Monroe in the 1800s to George W. Bush today, presidents have often issued signing statements when they sign a bill into law. They are generally considered uncontroversial, unless they challenge the very law being signed." Signing statements are official presidential statements, issued when the president signs a bill into law, which provide the official executive branch guidance to the federal bureaucracy on how the new law should be interpreted. Kendall then noted one Bush signing statement that has drawn criticism, in which Bush indicated that he would interpret a congressional ban on "cruel, inhuman, or degrading treatment" of detainees "in a manner consistent with the constitutional authority of the president as he attempts to protect the American people from further terrorist attacks." In prefacing her report with the suggestion that signing statements have been common throughout history, Kendall uncritically echoed what she later reported was the administration's position: "The administration defends the practice, saying it's been done for nearly 200 years and is the least disruptive means of balancing Congress' role as lawmakers with the president's power as chief executive."

However, this assertion of historical authority is misleading. The Boston Globe has noted in multiple articles that, while presidents have issued signing statements before, Bush, in his signing statements, has challenged more than 750 individual statutory provisions -- more than the 576 challenged by all other previous presidents combined. Moreover, the Globe noted that Bush has far more frequently used signing statements not only to clarify ambiguous provisions of new laws, but also "to waive his obligation to follow" even clear provisions in the law he just signed. The Bush administration policy of issuing such signing statements has come under heavy criticism from some conservative legal scholars, according to the Globe. Pepperdine University law professor Douglas Kmiec, former assistant attorney general for the Justice Department's Office of Legal Counsel during the Reagan administration, called the signing statements sometimes "disingenuous" and said that "[t]he president is not well served by the lawyers who are advising him." University of Chicago law professor Richard Epstein stated that the Bush administration use of signing statements "is just crazy as a matter of constitutional interpretation."

Bush's apparent assertion that he may ignore, if he finds it necessary, provisions he had just signed into law that prohibited "cruel, inhuman, or degrading treatment" of detainees, is just one example of signing statements he has issued that have drawn criticism. For example, Kendall did not mention Bush's signing statement accompanying the 2006 reauthorization of the USA Patriot Act, in which he declared that the Justice Department may withhold certain information from Congress detailing the department's use of some of the act's expanded search powers despite a provision in the law that required the Justice Department to provide that information to Congress in written reports. Bush has also asserted the authority to ignore whistleblower protections.

A January 6 Knight Ridder article noted another particularly ironic example:

In 2003, lawmakers tried to get a handle on Bush's use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.

An apparently complete list of the statements, with links to the bills they refer to, has been compiled by attorney Joyce Green.

From the June 27 edition of Fox News' Special Report with Brit Hume:

KENDALL: From James Monroe in the 1800s to George W. Bush today, presidents have often issued signing statements when they sign a bill into law. They are generally considered uncontroversial, unless they challenge the very law being signed.

It happened when President Bush signed last year's ban on torture, sponsored by Senator John McCain [R-AZ]. Mr. Bush said he would interpret that ban in a manner consistent with the constitutional authority of the president as he attempts to protect the American people from further terrorist attacks. Some lawmakers say that signing statement defeats the purpose of the law.

[...]

KENDALL: The administration defends the practice, saying it's been done for nearly 200 years and is the least disruptive means of balancing Congress' role as lawmakers with the president's power as chief executive.

MICHELLE BOARDMAN [deputy assistant attorney general]: Respect for the legislative branch, when we have a well- crafted bill, the majority of which is constitutional, is shown when the president chooses to construe a particular section in keeping with the Constitution, as opposed to defeating an entire bill that would serve the nation.