Last week’s NRO editorial on Senate Judiciary Chairman Specter’s questions to AG Gonzales in preparation for today’s hearing on the NSA’s terrorist surveillance program analyzed Sen. Specter’s suggestion that President Bush was somehow bound by what the senator took to be President Jimmy Carter’s “explicit renunciation of any claim to inherent Executive authority to conduct warrantless domestic surveillance” in signing FISA.

The Justice Department has convincingly rebutted this suggestion in the answers it provided last Friday to Sen. Specter’s questions – specifically, answer number 6, which demonstrates that renunciation is not merely unsound as a legal theory but also counter-factual in the case of President Carter and FISA. (Speaking for the administration, Attorney General, Griffen Bell unambiguously testified that Carter was in no way renouncing his inherent authority by acceding to FISA).

It is interesting to note, though, that the Clinton administration took an even more aggressive position on this question. Speaking for the Reno Justice Department’s Office of Legal Counsel, then-Assistant Attorney General Walter Dellinger argued that Presidents were not only unaffected and unrestricted by their predecessors’ positions. Dellinger said that Presidents were not even bound by their own positions – or even bound to defend or execute provisions that they themselves had signed into law. Here’s how Dellinger put it in his formal 1994 OLC opinion, provided as guidance to the Clinton White House (italics are mine):

The fact that a sitting President signed the statute in question does not change this analysis [i.e., that if, in Dellinger’s words, “the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it.”] The text of the Constitution offers no basis for distinguishing bills based on who signed them; there is no constitutional analogue to the principles of waiver and estoppel. Moreover, every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions. … As we noted in our memorandum on Presidential signing statements, the President “may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.” Memorandum for Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel at 4 (Nov. 3, 1993) [underlining in original]. (Of course, the President is not obligated to announce his reservations in a signing statement; he can convey his views in the time, manner, and form of his choosing.) Finally, the Supreme Court recognized this practice in INS v. Chadha, 462 U.S. 919 (1983): the Court stated that “it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds” and then cited the example of President Franklin Roosevelt’s memorandum to Attorney General Jackson, in which he indicated his intention not to implement an unconstitutional provision in a statute that he had just signed. Id. at 942 n.13. These sources suggest that the President’s signing of a bill does not affect his authority to decline to enforce constitutionally objectionable provisions thereof.
In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.

Here, it is worth remembering that President Bush recently signed a defense appropriations bill rather than veto it over the McCain amendment on interrogation practices. In so doing, the President issued a signing statement qualifying that the McCain amendment would only be enforced in a manner consistent with the President’s responsibilities as commander-in-chief. As I’ve said before, I would have preferred that he’d vetoed the measure. But it is noteworthy that many Democrats and other critics assailed the signing statement qualification procedure, even though it is entirely consistent with the Clinton administration views outlined above.