As suggested more than once here, just because something is legal does not make it a good thing. The Constitution is not an exception to this rule. Sandy Levinson has a new book out that deals with various constitutional matters that are arguably misguided, pointing to one (presidential vetoes) here. I responded, noting vetoes seem legitimate to me for three main reasons: guard against unconstitutional laws, threats on executive power, and a generalized check against constitutional harms (such as on "general welfare") especially when Congress failed to act in a truly principled way (open-ended, I know, and open to debate).
The stem cell veto did not seem to meet such a test. As to threats on executive power, the Bush Administration has gone the "signing statement" route, often (especially vis-a-vis his precedessors) in questionable ways. As a recent CRS report (h/t The Nation) noted: "while there are instances in which signing statements are predicated on specific and supportable concerns, the majority of the objections raised for example in President Bush's signing statements are largely unsubstantive or are so general as to appear to be hortatory assertions of executive authority."
One recent gem concerns of all things the qualifications of the FEMA director. The report is interesting and underlines that signing statements per se are not illegitimate. In fact, when the President has an important role in the crafting of a bill, arguably, they have some value when courts interpret statutes. But, and remember this is the Congressional Research Service not some partisan group talking, Bush uses them for questionable reasons:
While an actual refusal of a President to enforce a legal provision may be characterized as an "effective" line-item veto, the provision nonetheless retains its full legal character and will remain actionable, either in the judicial or congressional oversight contexts. Additionally, the broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the President in fact possesses expansive and exclusive powers upon which the other branches may not intrude.
A couple things. First, the point of the "effective" line-item veto discussion is that some argue that signing statements in effect allow presidents selectively not enforce parts of laws, that is, "line-item" vetoing parts s/he does not like. This is unconstitutional, if it is what they are actually doing. The report argues that the law is still on the books. But, I think the point holds: if a law is not enforced, what good is it? Yes, congressional pressure might lead to a different result, plus future presidents might do things differently. But, this just tempers the problem.
Now, the report quotes a couple of conservative leaning sorts (well I know one is) that suggest critics cannot point to one example of the statements being other than "horatory," that is, of Bush actually not following the law. This seems to me a bit naive, especially given how he stretched the anti-torture laws. But, the report underlines the problem that exists all the same, suggesting the overall goal is "inuring the other branches of government and the public to the validity of such objections and the attendant conception of presidential authority that will presumably follow from sustained exposure and acquiescence to such claims of power." The importance of oversight and a strong congressional check, as noted, is that much more essential.
Too bad Congress continues to be so weak and the President in part resists that very oversight power, often on claimed constitutional grounds. Suggesting the excessive nature of such claims, the report notes:
Congress has imposed direct reporting requirements on Executive Branch officials since the first Congress. Legislation establishing the Treasury Department required the Secretary to report to Congress and to "perform all such services relative to the finances, as he shall be directed to perform."
Thus, though presidents since Reagan (per Alito) used signing statements in significant force (the general practice goes back to the early 19th Century), Bush is different. Let us not ignore that other presidents, yes including Clinton, overused executive power. The "you did it too" childish taunt really only holds a bit of water. [It is used as a sign of their opponent's apparent hypocrisy; they often do not actually respect Clinton etc. Again, this underlines the "Clinton was no saint, no duh" truism.] This only makes the fact Bushies support more abuse of executive power that much more problematic:
While the substance of the Bush II signing statements appear to be comparable to those of previous administrations, the nature and sheer number of provisions challenged or objected to indicates that there is nonetheless a qualitative difference to the current Administration's use of this instrument.
More proof of my general rule: Bush is not the devil, but hey, he's closer to one than we should be comfortable with. This is enough for me.