President Obama's signing statements and the expansion of executive power.

Author:Crouch, Jeffrey
Position::The Law - Report
 
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"The Decider" Returns?

In a January 2013 signing statement, President Barack Obama stated that his constitutional powers as president limited him to signing or vetoing a law outright and that he lacked the authority to reject legislative provisions "one by one." Yet he then proceeded in a nearly 1,200 word statement to pick the law apart, section by section, and to effectively challenge many provisions by declaring that they violated his constitutional powers as commander in chief.

According to his signing statement, a provision restricting the president's authority to transfer detainees to foreign countries "hinders the Executive's ability to carry out its military, national security, and foreign relations activities and would, under certain circumstances, violate constitutional separation of powers principles" (Obama 2013). Obama did not mention, however, that Congress specifically authorized transfers to foreign countries as long as the secretary of defense, with the concurrence of the secretary of state and in consultation with the director of national intelligence, certified that the foreign government receiving the detainees was not a designated state sponsor of terrorism and possessed control over the facility the individual would be housed (P.L. 112-239; see Fisher 2013).

Obama also objected to a number of provisions that he claimed would violate his "constitutional duty to supervise the executive branch" and several others that he said could encroach upon his "constitutional authority to recommend such measures to the Congress as I 'judge necessary and expedient.' My Administration will interpret and implement these provisions in a manner that does not interfere with my constitutional authority" (Obama 2013).

What the president could not block or modify through concessions or veto threats during budget negotiations with members of Congress, he decided he could unilaterally strip from a signed bill. Similar to his predecessor, George W. Bush, Obama suggested that he was the ultimate "decider" on what is constitutional and proper. Few acts by occupants of the White House so completely embody the unchecked presidency.

Candidate Obama on Signing Statements

President Obama's actions have been surprising given that he proclaimed while first running for his office that he would not issue signing statements that modify or nullify acts of Congress (YouTube 2013). In a December 2007 response to the Boston Globe, presidential candidate Obama provided a detailed explanation for his thinking: "I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with [the George W. Bush] administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation" (Savage 2007a).

Candidate Obama's objection to President Bush's actions centered on one of the three varieties of signing statement, in this case, a "constitutional" signing statement. In a "constitutional" signing statement, a president not only points out flaws in a bill, but also declares--in often vague language--his intent not to enforce certain provisions. Such statements may be different than ones that are "political" in nature. In "political" signing statements, a president gives executive branch agencies guidance on how to apply the law. (1) Finally, the most common type of signing statements are "rhetorical," whereby the intent of the president is to focus attention on one or more provisions for political gain (Kelley 2003, 45-50).

President Obama's Policy on Signing Statements

At the start of his term, it seemed that President Obama would honor his campaign commitments and break with his predecessor when he issued a memorandum to heads of executive branch departments and agencies regarding his policy on signing statements. In this memorandum, he wrote, "there is no doubt that the practice of issuing [signing] statements can be abused." He objected to the use of signing statements where a president disregards "statutory requirements on the basis of policy disagreements." Only when signing statements are "based on well-founded constitutional objections" do they become legitimate. Therefore, "in appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress." President Obama proceeded to list four key principles he would follow when issuing signing statements: (1) Congress shall be informed, "whenever practicable," of the president's constitutional objections; (2) the president "will act with caution and restraint" when issuing statements that are based on "well-founded" constitutional interpretations; (3) there will be "sufficient specificity" in each statement "to make clear the nature and basis of the constitutional objection"; and finally, (4) the president would "construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one" (Obama 2009a).

Media coverage praised President Obama's action. The Boston Globe declared, "Obama reins in signing statements" (Editorial 2009). David Jackson of USA Today reported, "Obama tried to overturn his predecessor again on Monday, saying he will not use bill signing statements to tell his aides to ignore provisions of laws passed by Congress that he doesn't like" (Jackson 2009). Another reporter noted, President Obama "signaled that, unlike Bush, he would not use signing statements to do end runs around Congress" (James 2009).

Any expectations for a shift in the exercise of signing statements ultimately were misplaced, as President Obama, like his predecessor, has used signing statements in ways that attempt to increase presidential power. In this article, we first describe and analyze the continuity of policy and action between Barack Obama and George W. Bush. Second, we address why signing statements--at least one type of them--can not only be unconstitutional abuses of presidential power, but may also be unproductive tools for promoting interbranch dialogue and cooperation. Third, we show that signing statements are a natural result of expanding power in the modern presidency and that they have come to be used as a means of unilateral executive action. Finally, we provide a possible corrective to some of the more aggressive forms of constitutional signing statements that impact appropriations.

The Evolution of President Obama's Policy on Signing Statements

Year One

Despite the press's praise for President Obama's signing statements memorandum, a closer examination suggests that there is not as much separation between Bush and Obama as once believed. Only one of the four principles set out in the president's memorandum offers any real limits on the use of signing statements. The first principle merely states that Congress shall be informed when the president issues a signing statement. This never was a criticism of Bush, as the former president's signing statements were generally accessible to Congress and the public. President Obama left himself an opening for the nondisclosure of signing statements by noting that Congress would be informed "whenever practicable." Did he mean that a signing statement, under certain conditions, could be withheld from Congress and the public? To our knowledge, he has yet to do that, nor would it be credible to do so.

The second principle is troublesome as well. In it, Obama said he would "act with caution and restraint, based only on interpretations of the Constitution that are well-founded." Of course, the president would decide when he is acting with caution and restraint, and whether an interpretation is well founded is also up to him. The fourth principle offers no clear change from his predecessor. Only with the third principle did Obama set himself apart from Bush. President Obama explained that he would provide "sufficient specificity to make clear the nature and basis of the constitutional objection."

Vague and opaque signing statements were a frequent criticism during the Bush years. For example, one of Bush's signing statements from 2002 argued, "the executive branch shall construe and implement [the E-Government Act which set information security standards and provided protection for confidential information] in a manner consistent with the President's constitutional authorities to supervise the unitary executive branch and to protect sensitive national security, law enforcement, and foreign relations information" (Bush 2002). Such broad nonspecific statements were standard fare during the Bush years, as the president claimed a general authority to construe a statutory restriction or legal objection "in a manner consistent" with the Constitution.

If President Obama had implemented his third principle to provide greater clarity, it would have represented a real transformation in how presidents use signing statements. However, just two days after outlining his signing statements principles, President Obama appears to have violated his promise to be transparent and clear when making constitutional objections. On March 11, 2009, he issued his first constitutional signing statement, which focused on the Omnibus Appropriations Act, 2009. Although not all of the president's constitutional objections were specific or clear, the signing statement did attempt to list many of the provisions he believed violated the Constitution. For example, President Obama listed section 7050 in Division H of the law as interfering with his duties as commander in chief, and therefore the president would apply it "consistent with" his "constitutional authority and...

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