{"id":2285,"date":"2011-05-01T01:00:16","date_gmt":"2011-05-01T05:00:16","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=2285"},"modified":"2011-05-28T16:53:30","modified_gmt":"2011-05-28T20:53:30","slug":"signing-statements-done-wrong-and-done-right","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=2285","title":{"rendered":"Signing Statements Done Wrong, and Done Right"},"content":{"rendered":"

The Big Picture Home Page<\/a>\u00a0| Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n

\u00a0<\/span>Signing Statements Done Wrong, and Done Right<\/h2>\n

\u00a0Published in the Maryland Daily Record May 2, 2011\u00a0\u00a0\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 James Risen of the New York Times recently attempted to add an exhibit to the growing \u201cObama is a lot like Bush\u201d meme by pointing out that President Obama had recently issued a signing statement on the budget bill<\/a>, asserting that two sections of the bill were improper encroachments on presidential power.\u00a0 Risen commented that \u201c[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.\u201d<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I have a great deal of admiration for Risen, and have expressed it more than once in this column<\/a>, but this time he\u2019s implying nonsense.\u00a0 In this area, Obama is not Bush Lite, he\u2019s just Not Bush.\u00a0 Here is the real story.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Signing statements are statements a president makes when he signs a bill into law.\u00a0 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.\u00a0 They are not reliably posted on the White House website, but you can find them in various places, including www.presidency.ucsb.edu<\/a>.\u00a0 And you\u2019ll see, if you compare George W. Bush\u2019s with just about any other president\u2019s, 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]\u00a0 Bush was routinely spoiling for a fight with Congress, but it wasn\u2019t just his pugnacity that was the problem.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 For one thing, he was routinely deliberately opaque.\u00a0 He used repetitive boilerplate objections that did not signal what he found objectionable or what he might do about it.\u00a0 Here\u2019s a standard one, part of his comment<\/a> on the Trafficking Victims Protection Reauthorization Act of 2005<\/a>:<\/p>\n

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.<\/p>\n

Did this signal a determination that in certain circumstances he would defy Congress about whether to submit the report?\u00a0 Did Bush himself have any idea?[3]<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Frequently Bush would signal an intent to interpret a law in a way that could not be squared with the text of the law.\u00a0 Here\u2019s part of his comment on the Deficit Reduction Act of 2005<\/a>:<\/p>\n

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 …<\/p>\n

Yet when you read the language of the law, there\u2019s nothing optional about it.\u00a0 It reads in relevant part: \u201cEach 5-fiscal year plan … shall be developed by the Secretary in consultation with the Comptroller General of the United States …\u201d\u00a0 (The Comptroller General is a Congressional officer.<\/a>)<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Endlessly repeated (reportedly 363 times)[4] in the Bush comments[5] is a commitment to the notion of the \u201cunitary executive,\u201d which means an executive in which no part is independent of the president and his policy-making<\/a>, even those administrative bodies established by Congress to effectuate Congressional<\/em> policy.\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It was excesses like these that led the ABA to issue a blue-ribbon panel report in 2006 <\/a>calling for legislation to curb signing statements (responsive legislation did not pass),[6] and led also to President Obama\u2019s early Federal Register notice<\/a> about signing statements.\u00a0 There he advised that he would attempt to advise Congress in advance when constitutional problems were threatened by upcoming legislation, and that \u201cI 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.\u201d<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 With this background, then, let us turn to the specific signing statement Risen singled out.\u00a0 And let\u2019s 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.\u00a0 He is not remotely comparable to Bush in that way.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The statement<\/a> challenged two provisions of the interim budget, Department of Defense and Full-Year Continuing Appropriations Act, 2011<\/a>.\u00a0 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.\u00a0 In measured and precise terms, Obama explained exactly why he considered these strictures objectionable.\u00a0 With respect to the detainees, Obama merely criticized the Congressional policy choices;[7] he did not signal defiance.\u00a0 As to the czar positions, he claimed a\u00a0\u00a0\u00a0\u00a0<\/p>\n

\u00a0… 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\u2019s 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Risen commented that \u201cthe battle over czars has little effect on White House operations\u201d because the positions are currently vacant.\u00a0 But the same objection could be leveled at Congress.\u00a0 Clearly this is a substantive fight.\u00a0 \u201cCzars\u201d 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.<\/a>\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 So if<\/em> we are to have signing statements, Bush exemplified how not to do them, and Obama is doing them right.\u00a0 Should<\/em> we have them at all?\u00a0 The ABA\u2019s report staked out the position that if a President thinks a law contains unconstitutional language, he shouldn\u2019t sign it.[8]\u00a0 To me, that is Ivory Tower impracticality.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Take the 2011 Appropriations Act; if Obama hadn\u2019t signed it, the government would have shut down.\u00a0 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?\u00a0 Such purity would make government impossible.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Signing statements are actually a good alternative to such chaos.\u00a0 The President asserts non-aquiescence, government moves on, and the courts can sort the matter out if they need to.\u00a0 A better system all around.<\/p>\n

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[1].\u00a0 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<\/a>.<\/p>\n<\/div>\n

\n

[2].\u00a0 See here<\/a>, at Page 14.<\/p>\n<\/div>\n

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[3].\u00a0 A good discussion of the problems and threats posed by Bush\u2019s lack of clarity in signing statements can be found in Malinda Lee, REORIENTING THE DEBATE ON PRESIDNETIAL SIGNING STATEMENTS: THE NEED FOR TRANSPARENCY IN THE PRESIDENT\u2019S CONSTITUTIONAL OBJECTIONS, RESERVATIONS, AND ASSERTIONS OF POWER, 55 UCLA L. Rev. 705 (2008)<\/a>.<\/p>\n<\/div>\n

\n

[4].\u00a0 Per this article<\/a> 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).<\/p>\n<\/div>\n

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[5].\u00a0 For instance, in the comment on the Deficit Reduction Act of 2005.<\/p>\n<\/div>\n

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[6].\u00a0 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).<\/p>\n<\/div>\n

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[7].\u00a0 At least with respect to trying detainees in U.S. mainland courts, this column is on record<\/a> as agreeing with the position the President at least does not want to foreclose.<\/p>\n<\/div>\n

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[8].\u00a0 See here<\/a>, at Page 5.<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a>\u00a0| Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The ABA\u2019s report said that if a President thinks a law contains unconstitutional language, he shouldn\u2019t sign it. To me, that is Ivory Tower impracticality. Take the 2011 Appropriations Act; if Obama hadn\u2019t signed it, the government would have shut down. Would it have been remotely responsible for Obama to have done that? 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.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[2666,1524,2671,2660,2676,2672,2663,2664,2683,2670,2680,2662,2668,2682,2667,136,2674,5,2669,2673,2675,2677,2658,2678,2681,709,401,2659,2661,2679,2665],"class_list":["post-2285","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-aba","tag-american-bar-association","tag-auto-czar","tag-bush-lite","tag-charlie-savage","tag-climate-czar","tag-comptroller-general-of-the-united-states","tag-congress","tag-constitutionality","tag-czar-positions","tag-dawn-johnsen","tag-deficit-reduction-act-of-2005","tag-dpartment-of-defense-and-full-year-continuing-appropriations-act-2011","tag-faith-joseph-jackson","tag-federal-register","tag-george-w-bush","tag-government-shutdown","tag-guantanamo","tag-guantanamo-detainees","tag-health-care-czar","tag-laura-mcdonald","tag-legislative-history","tag-ma","tag-malinda-lee","tag-neil-kinkopf","tag-president-barack-obama","tag-president-george-w-bush","tag-presidential-powers","tag-trafficking-victims-protection-reauthorization-act-of-2005","tag-transparency","tag-unitary-executive"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2285","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2285"}],"version-history":[{"count":16,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2285\/revisions"}],"predecessor-version":[{"id":2412,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2285\/revisions\/2412"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2285"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2285"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2285"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}