Signing Statements Done Wrong, and Done Right

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 Signing Statements Done Wrong, and Done Right

 Published in the Maryland Daily Record May 2, 2011   

       James Risen of the New York Times recently attempted to add an exhibit to the growing “Obama is a lot like Bush” meme by pointing out that President Obama had recently issued a signing statement on the budget bill, asserting that two sections of the bill were improper encroachments on presidential power.  Risen commented that “[d]uring his campaign for president, Mr. Obama criticized President George W. Bush for what he portrayed as abusive use of signing statements… But since taking office, Mr. Obama has seemed less reticent to employ signing statements than his campaign statement may have suggested.”

          I have a great deal of admiration for Risen, and have expressed it more than once in this column, but this time he’s implying nonsense.  In this area, Obama is not Bush Lite, he’s just Not Bush.  Here is the real story.

          Signing statements are statements a president makes when he signs a bill into law.  They become controversial when they suggest that the Executive may decline to implement or follow parts of the bill being signed, usually on the theory that there is something unconstitutional about the law.  They are not reliably posted on the White House website, but you can find them in various places, including www.presidency.ucsb.edu.  And you’ll see, if you compare George W. Bush’s with just about any other president’s, that he took to making controversial signing statements in a different way and in bulk (1200 bill provisions challenged[1] vs. around 600 total in all earlier presidencies).[2]  Bush was routinely spoiling for a fight with Congress, but it wasn’t just his pugnacity that was the problem.

          For one thing, he was routinely deliberately opaque.  He used repetitive boilerplate objections that did not signal what he found objectionable or what he might do about it.  Here’s a standard one, part of his comment on the Trafficking Victims Protection Reauthorization Act of 2005:

Section 104(e)(2) purports to require the Secretary of State, prior to voting for a new or reauthorized peacekeeping mission under the auspices of a multilateral organization…, to submit to the Congress a specific report. The executive branch shall construe this reporting requirement in a manner consistent with the President’s constitutional authority as Commander in Chief and the President’s constitutional authority to conduct the Nation’s foreign affairs.

Did this signal a determination that in certain circumstances he would defy Congress about whether to submit the report?  Did Bush himself have any idea?[3]

          Frequently Bush would signal an intent to interpret a law in a way that could not be squared with the text of the law.  Here’s part of his comment on the Deficit Reduction Act of 2005:

The executive branch shall construe … section 6034 of the Act, which purports to make consultation with a legislative agent a precondition to execution of the law, to call for but not mandate such consultation …

Yet when you read the language of the law, there’s nothing optional about it.  It reads in relevant part: “Each 5-fiscal year plan … shall be developed by the Secretary in consultation with the Comptroller General of the United States …”  (The Comptroller General is a Congressional officer.)

          Endlessly repeated (reportedly 363 times)[4] in the Bush comments[5] is a commitment to the notion of the “unitary executive,” which means an executive in which no part is independent of the president and his policy-making, even those administrative bodies established by Congress to effectuate Congressional policy.  Since Congress cannot implement policy except through the courts and the executive branch, a thoroughgoing adherence to unitary executive theory would leave Congress almost powerless to formulate national policy.

          It was excesses like these that led the ABA to issue a blue-ribbon panel report in 2006 calling for legislation to curb signing statements (responsive legislation did not pass),[6] and led also to President Obama’s early Federal Register notice about signing statements.  There he advised that he would attempt to advise Congress in advance when constitutional problems were threatened by upcoming legislation, and that “I will ensure that signing statement identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.”

          With this background, then, let us turn to the specific signing statement Risen singled out.  And let’s note as we do that this is by my count the ninth statement from Obama to raise constitutional objections to any act he has signed.  He is not remotely comparable to Bush in that way.

          The statement challenged two provisions of the interim budget, Department of Defense and Full-Year Continuing Appropriations Act, 2011.  One pair of challenged sections barred the use of funds to transfer Guantanamo detainees to the United States for trial or move them to other countries, another barred paying for White House advisory positions colloquially known as the health care, auto and climate czars.  In measured and precise terms, Obama explained exactly why he considered these strictures objectionable.  With respect to the detainees, Obama merely criticized the Congressional policy choices;[7] he did not signal defiance.  As to the czar positions, he claimed a    

 … well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority…. Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.

          Risen commented that “the battle over czars has little effect on White House operations” because the positions are currently vacant.  But the same objection could be leveled at Congress.  Clearly this is a substantive fight.  “Czars” are not generally subject to Senatorial confirmation, and centralize much authority in the White House and take it from other Executive branch agencies that may be more accountable to and manipulable by Congress.  Even if the fight is being carried on via the proxy of unfilled positions, it is a real one, and Obama has made it clear he intends to defy Congress if it defunds any future czar he chooses to appoint.

          So if we are to have signing statements, Bush exemplified how not to do them, and Obama is doing them right.  Should we have them at all?  The ABA’s report staked out the position that if a President thinks a law contains unconstitutional language, he shouldn’t sign it.[8]  To me, that is Ivory Tower impracticality. 

          Take the 2011 Appropriations Act; if Obama hadn’t signed it, the government would have shut down.  Would it have been remotely responsible for Obama to have done that merely because he thought a couple of provisions among the thousands in that massive bill were constitutionally deficient?  Such purity would make government impossible.

          Signing statements are actually a good alternative to such chaos.  The President asserts non-aquiescence, government moves on, and the courts can sort the matter out if they need to.  A better system all around.


[1].  Laura McDonald, THE INTERPRETIVE WORTH OF PRESIDENTIAL SIGNING STATEMENTS: A NEW FORM OF LEGISLATIVE HISTORY, 38 Fla.St.L.Rev. 179, 185 (2010), citing a piece by Charlie Savage in the New York Times.

[2].  See here, at Page 14.

[4].  Per this article by Dawn Johnsen, at Page 417, citing Neil Kinkopf, Signing Statements and Statutory Interpretation in the Bush Administration, 16 WM. & MARY BILL RTS. J. 307, 312 (2008).

[5].  For instance, in the comment on the Deficit Reduction Act of 2005.

[6].  An analysis of one, H.R. 5993, the Presidential Signing Statements Act of 2008, can be found in Faith Joseph Jackson, THE CONSTITUTIONALITY OF PRESIDENTIAL SIGNING STATEMENTS: A NOTE ON H.R. 5993, 35 J. Legis. 1 (2009).

[7].  At least with respect to trying detainees in U.S. mainland courts, this column is on record as agreeing with the position the President at least does not want to foreclose.

[8].  See here, at Page 5.

Copyright (c) Jack L. B. Gohn

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