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the Boston Globe

US Agencies Disobey 6 Laws that President Challenged

Charlie Savage

WASHINGTON -- Federal officials have disobeyed at least six new laws that President Bush challenged in his signing statements, a government study disclosed yesterday. The report provides the first evidence that the government may have acted on claims by Bush that he can set aside laws under his executive powers.

In a report to Congress, the non partisan Government Accountability Office studied a small sample of the bill provisions that Bush has signed into law but also challenged with signing statements. The GAO found that agencies disobeyed six such laws, while enforcing 10 others as written even though Bush had challenged them.

House Judiciary Committee chairman John Conyers , Democrat of Michigan, said yesterday that the GAO's findings demonstrated a need for a more "extensive review" of how the government has followed up on hundreds of other laws challenged by Bush.

"The administration is thumbing its nose at the law," said Conyers, one of the lawmakers who commissioned the GAO study.

A signing statement is a legal document filed in the Federal Register the day a president signs a bill into law. It instructs the executive branch about how to implement the new statutes the bill creates, and sometimes it states that certain provisions are unconstitutional and need not be enforced as written.

Bush's signing statements have drawn fire because he has used them to challenge more than 1,100 sections of bills -- more than all previous presidents combined. The sample the GAO studied represents a small portion of the laws Bush has targeted, but its report concluded that sometimes the government has gone on to disobey those laws.

For example, one law requires the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson every seven days to prevent smugglers from being able to predict where they are, but the agency failed to do so. The border patrol told the GAO that the law is flawed because it "diverts resources," and it characterized the requirement as "advisory."

In his signing statement of Oct. 18, 2005, Bush instructed the border patrol to view the "relocation provision as advisory rather than mandatory" on the assertion that only the president has the constitutional authority to decide how to deploy law enforcement officers.

None of the laws the GAO investigated included the president's most controversial claims involving national security, such as his assertion that he can set aside a torture ban and new oversight provisions in the USA Patriot Act because he is the commander in chief. Such material is classified.

Virginia Sloan , president of the Constitution Project -- a bipartisan think-tank that has condemned signing statements as a threat to the checks and balances that limit presidential power -- said yesterday that the GAO report shows that signing statements matter.

"The findings of this report should come as no great surprise: When the president tells federal agencies they don't have to follow the law, they often don't," Sloan said. "This report should put to rest any doubts as to the real impact of signing statements. The Constitution does not bestow upon the president the power to simply ignore portions of laws he doesn't like."

But Tony Fratto , a White House spokesman, defended Bush's use of signing statements and his expansive view of the president's constitutional powers.

"We are executing the law as we believe we are empowered to do so," Fratto said. "The signing statements certainly do and should have an impact. They are real."


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Still, the GAO report's authors made clear that it was beyond the scope of their study to determine whether the federal agencies' failure to enforce laws as written is due to Bush's signing statements, or a mere coincidence. They did not interview individual officials to learn whether the signing statements played a role in their actions.

"Although we found that the agencies did not execute the provisions as enacted, we cannot conclude that agency noncompliance was the result of the President's signing statements," the report said.

The GAO also did not take a position on whether the Bush administration's aggressive theories about the president's powers to act beyond the will of Congress are constitutionally sound.

Of the other five laws that the study found were disobeyed, two provisions required agencies to get permission from a congressional committee before taking certain actions. In both cases, the agencies notified the committee but acted without their permission -- just as Bush's signing statements instructed them.

The other three provisions involved the executive branch giving information to congressional oversight committees, including plans for emergency housing following a disaster; budget documents related to certain military operations in Iraq and Afghanistan; and a proposal to fix a problem related to funding for military medical services. In all three cases, the administration did not obey the laws as written.

The GAO conducted its study by looking at all the provisions in 11 appropriations bills for fiscal year 2006 that Bush challenged in signing statements. It counted 160 such laws that the president had claimed a right to ignore.

Investigators then selected a representative sample of 19 bill provisions Bush had targeted and asked agencies to explain whether and how they had obeyed the provisions. It found that 10 such laws were enforced as written, six were not enforced as written, and three did not have to be enforced because the circumstance envisioned had not materialized.

The revelation that investigators had found six laws that were disobeyed within the small sample prompted angry words from the other lawmaker who commissioned the GAO study, Senate Appropriations Committee chairman Robert Byrd , Democrat of West Virginia. He called Bush's signing statements a "power grab" that undermined Congress's authority to write the laws.

"The White House cannot pick and choose which laws it follows and which it ignores," Byrd said. "When a president signs a bill into law, the president signs the entire bill. The administration cannot be in the business of cherry-picking the laws it likes and the laws it doesn't."

But Erik Ablin , a Justice Department spokesman, said, "We reject allegations that the administration is ignoring or selectively following the law."

Bush's use of the device became the subject of widespread controversy in 2006 following his challenge to a high-profile torture ban the White House had tried to defeat in Congress.

Since Democrats took over Congress, Bush has not issued a signing statement. But Fratto said the reason for their absence is that Congress has sent few major bills to the president's desk, not because of any policy change.

© Copyright 2007 The New York Times Company

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