George Bush's legacy is going to be his use of signing statements. He has used them to replace the veto, which represents a shift in institutional power and alters the relationship between the branches. When a president doesn't issue a veto until the sixth year of his presidency but nonetheless systematically takes exception to legislation, that person is doing something different from what his predecessors did. Some observers view this as a healthy exercise of executive power; others view it as overstepping. I’m in the second camp.

Many signing statements are absolutely benign. They applaud Congress for passing the legislation, for instance. It’s true that earlier presidents used signing statements as something akin to what I call a 'de facto item veto.' What's new in this president's use is the displacement of the traditional veto for this alternative form. A good example is John McCain’s proposal from 2005 that banned the torture of detainees and passed with a veto-proof majority. Bush had already made clear his administration’s views on the matter, but he held a press availability with Senator McCain in which he said positive things about the legislation. He engaged in what I would call “public embrace, private repudiation.” Two weeks after the press conference, President Bush signed the bill, and the signing statement was posted on the White House Web site. Its eighth paragraph reserved the right to nullify the provision over which McCain and Bush had fought. The president didn’t say he would nullify it; he said he reserved the right to do so. That happened on December 30. Where do you think reporters are on December 30? They’re not paying attention to the White House Web site.

So you can ask if the press availability was real. Now you have a de facto item veto in a constitutionally problematic moment, because had Bush simply vetoed the bill, McCain would have had the votes to override it. That would have checked the president, as provided for in the Constitution.

If President Bush’s successors continue to do this, it could be not simply an important legacy. It could be the most important legacy. It shifts your presumption of what presidents can do."

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