Literally days after proclaiming that change had come to “signing statements” with a new policy, President Obama has issued a very Bush-like signing statement with his signing of the appropriations bill. The signing statement reserves the right to treat literally dozens of provisions as presumptively unconstitutional.
This week, Obama ordered his government to ignore provision-bypassing signing statements and signaling that he would not continue Bush’s highly controversial use of the power. In fairness, Obama did not promise to forego the use of such signing statement but said that he would use “with caution and restraint, based only on interpretations of the Constitution that are well founded.” That statement appeared in anticipation of his objections to the spending bill.
The provisions that Obama rejected dealt with such things as a provision barring the expenditure of money on any United Nations peacekeeping missions where United States troops are put under a foreign commander unless Mr. Obama’s military advisers so recommend.
That particular provision is troubling to me as a constitutional matter. The Framers expressly gave Congress the power of the purse as a check and balance on executive authority. The use of appropriations to restrict “foreign entanglements” and “adventures” was well-accepted. This has a true Bush-like quality as a signing statement.
Obama should simply disavow all signing statements, at least those that seek to alter the meaning or refuse to comply with provisions. The American Bar Association and many academics have encouraged Obama to take such a principled stand.
For the full story, here.After
Like Buddha and Mike A, I believe signing statements to be merely precatory, that is, a statement by the Executive as to what it wishes the law to be. That the law remains reviewable by the Court is all that really matters, and I do agree with Buddha here again that Congress should take this issue to SCOTUS and have a binding decision as to just what legal effect these declarations have on existing law. When and if that case is decided, I would like to be at the corner of N.4th & Hospital Streets here in Richmond, strolling through Shockoe Hill Cemetery, hard by the graves of the Confederate War dead, and, amid the simple wrought iron fencing of site 52A, where one particularly famous federal jurist is simply interred in the Marshall family plot. I imagine a sapphire blue fall day in October, with the Silver Maples in their chartreuse majesty, and the Pin Oaks donning their muted russet color in deference to the occasion,and I fully expect to hear from somewhere deep in the Virginia clay, a muted but supremely clear, “Yippee.”
I think that the problem here isn’t signing statements, it is what is alleged in the statement and whether it is used to “authorize” the Excutive Branch to not enforce the law pased by Congress. If it is used like George W. to avoid the enforcement of valid legislation then I have a problem with it. If it is used to merely express an opinion then I do not have a problem. If a President doesn’t want to enforce a law, I, in my humble opinion, believe that he/she must veto it.
This is from Charlie Savage’s interveiw with Bill Moyers on Bush’s signing statments. NB the last paragraph. All of it will sound familiar because he is discussing exactly the same actions. Mike A.’s anaylsis says it all:
“. I went back and read all these signing statements … that had been put into the Federal Register since the beginning of the Bush administration. What it turned out to be was a road map, essentially, to the implication of the unfettered presidency that Dick Cheney’s legal team was trying to create, because when you march down the hundreds of different laws that Bush had declared himself and the executive branch free to disobey, you saw that it’s not just a torture ban here or a question of surveillance there, but in hundreds of matters, now over a thousand, large and small, anywhere where the Congress had tried to say the executive branch had to do something, couldn’t do something else, had to go about doing something in a certain way — ranging from military rules and regulations, whistleblower protections, protections from political interference in federally funded research, affirmative action hiring programs, across a wide swath of what the government does — the implication was that Congress could not regulate the government.
It was none of Congress’ business what the government did, how it went about it, what the limits of its conduct were. All these matters were solely for the president to decide. So Congress could make laws for the rest of us, but not for the government. The government existed to do what the president wanted it to do at any given moment.
How can a supposedly learned constitutional lawyer consider signing statements as remotely constitutional?
An educated hypocrite is worse—and more damnable—than an uneducated fool is. The former fully understands his transgressions, while the other acts on gullible, illogical impulse.
Hear, hear!
My own view is that signing statements are never appropriate because they violate the separation of powers doctrine, regardless of the rationale in any particular instance. It is impertinent and presumptuous for the chief executive to assume a judicial role, and his opinion on the constitutionality of legislation should be immaterial. The fact that Pres. Obama has the advantage of a law degree and judgment far superior to what his predecessor brought to the office may mean that his signing statements actually have some logic behind them, but that is not the point. If a president truly believes legislation is unconstitutional, he should exercise a veto and provide an explanation. Indeed, I believe his oath of office requires as much.
I haven’t read the provision in question, but if the NY Times is accurate in paraphrasing the provision, I can see the point of the signing statement. Certainly, the Congress could appropriately set an absolute limitation on the use of the money it granted in the case at hand (e.g., the money shall not be used for UN force engagements when the command is by others than Americans), but I would think it is objectionable for the Congress to say that such a use of its appropriated funds is acceptable only if someone holding a subordinate position in the Executive Branch (i.e., the President’s “military advisers”) give him the ok. To me, the provision is objectionable not because it tries to override congressional “power of the purse,” but because it tries to make the “military advisers” Commanders in Chief over the President, instead of the other way around. Taken to its logical extreme, would the Congress be able to enact a statute saying that the President could act under the War Powers Act, and expend appropriated money doing so, but only if his “military advisers” recommended such action. I think not.
I was glad that Charles Savage in his NYT piece cited the UN provision, which is both troubling and largely symbolic at the same time. If a military underlining disagrees with Obama’s policy on such matters, he can replace the person. An “advisor” sounds like a policy position he has at will power over. OTOH, Congress has clear funding power to set such guidelines.
It would be useful, however, if the professor didn’t just cover this provision. Another category dealt with what sounds like a legislative veto, one the Supreme Court clearly held unconstitutional. In fact, Salon and Talking Points Memo highlighted that part of the statement. Is this a problem too? It’s clearly a much closer question.
A third one dealt with whistleblowers going to Congress. It is somewhat hazy but quite troubling in that it appears that in certain cases he is saying the President has the power to decide on its own if the information is privileged or confidential, when the whole point here is that the executive cannot be trusted. This too has a Bushian flavor.
Well yeah, I’m not saying I want Bush back! Right now, my debate is over the capital L. But that alone doesn’t win my trust. That is something that has to be earned. Actions speak louder than words. Especially after Bush Co.
When we elected Obama we got ourselves, among other things,
a constitutional lawyer with a ‘Capitol’ L and everything that entails.
So far, I’ll take this over the previous eight years of misery
-any day.
Perhaps. Time will tell. I still consider it a bad sign.
Not necessarily.
I agree that signing statements should be used sparingly if at all, but veto is not always THE practical answer either – especially when an important Bill which needs passing, in the interest of time, is otherwise sound but for some * “infelicitous wording”
(*from JT’s NYT article link, above).
http://www.nytimes.com/2009/03/12/us/politics/12signing.html?_r=1
Patty,
The exercise itself is the problem.
Dubya was the one who gave signing statements a name
and it ain’t ‘Barry’, but it’s close… ;P
Without having read either the Bill or the signing statement, it sounds as though he has plausible Consitutional objections to possible interpretations of congressional phrasing whereas Bush routinely and arbitrarily whipped out his pen whenever he simply disagreed.
Therein lies the difference, I bet. Certainly, I don’t think we can judge after just this one exercise.
Seriously, ‘Brush’ never even got a glove on in this park.
One could say he was always outside of the class by himself
– strictly ‘Brush’ League…
Jill,
You got me 100% on this issue. He could still salvage this by using this retained illegal power to fix Bush’s crimes and then EXPRESSLY abdicating it for all time, but I don’t trust him to do that any more than you do. The President’s job is simple regarding a bill. Sign it or don’t. It’s called veto. You have concerns? Make a statement and send it back to Congress with instructions to make the new law presented conform with the Constitution after consulting with the DOJ and, if needed, litigation before SCOTUS. Cherry-picking though is EXACTLY what Bush did. Signing statements are NOT a “line item veto” for legislation and are a blatant violation of the Separation of Powers. Signing statements are no more binding that dicta and if I were to be challenged based on a signing statement, they’d never get me to recognize it as valid law EVER nor would I fight back fairly. He’s distressed me a couple of time up to now, but right now, Obama’s simply made me angry and shown himself a liar. Not that I’m too shocked. He’s a politician. It’s his nature to lie just like it’s a scorpion’s nature to sting. Even if it kills himself, or in this case by extension of the metaphor, kills his chance at re-election. I’ll go third party before I tolerate this kind of abuse from EITHER craptastic political party we are so burdened with in this country. I’m not a party member although I have been forced to claim one or the other by closed primaries (also an f-ing joke, albeit a local one). Partisanship is for ideologue zealots and hacks. My loyalty is simply to the Constitution and both parties are getting so far off base they both deserve to be thrown out from the mound. The GOP and DNC are not mentioned anywhere in the Constitution and can be disposed of ANY TIME We the People see fit to do so. They better get with THAT program. Further evidence that those in Washington forget they rule only at the consent of the governed and that We waaayyyy outnumber them. Keep poking Us. We’ll eventually bite you. Hard. Real, real hard. And Obama using signing statements illegally ala Bush Co. certainly qualifies as deliberate provocation.
President Obama has been a severe disappointment in several areas I consider important: reining in executive power, pursuing justice for those who willingly overrode the Constitution to allow for the detaining and torture of ‘enemy combatants’ and ‘terrorists’ and lately, mimimizing the importance of lobbyists, with reference to the abandonment of Charles Freeman under the pressure of pro-Israeli lobbyists.
I know that half a loaf is better than none, and that politics is the art of compromise, but I fear Obama’s actions will retard, or even stop, the recasting of our government’s policies into policies I believe are consistent with the Constitution.
We cannot depend on any president being a nice guy. That is why we are a nation of laws, not of men. When nice guys violates the
Constitution, they are still violating the Constitution. There is a consistent pattern of Constitutional violations under Obama that I feel just cannot be ignored. As citizens, we must be true to our own Constitution and demand the same from our leaders. We’ve seen what going down another path has brought to this nation and the world. Never again.
Off Topic: Just plain funny
Lex Luthor asks for a government bailout.
http://www.funnyordie.com/videos/f26c4046b0/lex-luthor-bailout-with-jon-hamm
Just because he’s a better guy than Bush doesn’t mean he’s the best guy. Obama needs to be held accountable to the Constitution like any man and this action ensures I’ll be working for another candidate next time around.
OBAMA! You’ve proven that you’ll lie about your commitment to the Rule of Law and the Constitution with this action. We the People won’t let this slide any more than We are willing to let Bush Co go unpunished for their numerous Constitutional violations.
END SIGNING STATEMENTS NOW. They are DICTA. The way you’ve worded this, should Congress pass an Amendment you or whomever is in office “personally” disagrees with, you can circumvent the will of the people and the document proper.
WRONG. We’ve had enough of that crap under Bush, thank you. Fix it or suffer the consequences in the form of a single term. I worked very hard to get you elected. I’ll work twice as hard to get you out if your intent is to enable more fascist repression and further endanger the Constitution’s integrity by ever expanding Executive Power. Up yours buddy, because no man is my king.
I’m patient while you put out the other fires, but I’m not stupid. In programming, what you’ve just done is install the equivalent of backdoor access for further Constitutional violations. “Liberal” does not mean “willing to bend over”. Find out the hard way if you like.