This legislation is a victory for bipartisanship, and it was passed overwhelmingly in both Houses of Congress. It's a victory for health care reform, as it will reduce some of the billions we spend on tobacco-related health care costs in this country. It's a law that will reduce the number of American children who pick up a cigarette and become adult smokers. And most importantly, it is a law that will save American lives and make Americans healthier.
(You catch the reference to health care reform??)
Now if you scroll down to the bottom of the page, you will find "Statements and Releases," which should contain all types of signing statements, and not just those that the administration wishes to showcase. Here is where I think I have "cracked the code." In the constitutional signing statements, thus far at least, the administration simply writes the bill number. In the case of President Obama's most recent signing statement (the 12th signing statement and the 5th to contain a constitutional challenge), it simply says "Statement from the President upon signing HR 2346". For those who have read media reports (i.e. here and here), they have been told that the challenges came to a war supplemental appropriations bill, thus searching those terms will leave the interested party confused. Only after clicking do you find that HR 2346 is indeed the "Supplemental Appropriations Act, 2009".
So when looking for Obama's signing statements, be diligent!
This signing statement, which is similar to those of his immediate predecessors, excluding Bush II, leaves the first several paragraphs to explaining what the bill consists of and the reasons for signing it, and leaves the challenges for the end of the signing statement. Thus comparing this statement to those of the Bush administration is not completely accurate, nor is it accurate for another reason, which I will address momentarily. But first, the challenge. President Obama writes:
...provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.Now recall that President Obama promised to be different from his predecessor (though he didn't specifically name him) when he issued his directive a couple of months ago outlining how he intended to use the signing statement. Specifically, Obama promised to (1) inform Congress beforehand about the "constitutional concerns" of any bill winding its way through the legislative process in order to "work together to address these concerns...thus minimizing the number of occasions on which" a signing statement would be used; (2) conclude that a provision is unconstitutional when issuing a signing statement, and if so, to exercise "caution and restraint" and to ground his conclusions on "interpretations of the Constitution that are well-founded"; (3) make sure that any challenge was clear and concise so that Congress, the courts, and whoever else would understand exactly why President Obama, and his legal advisers at the Justice Department, are making the challenge; and (4) to construe defective provisions of a bill in a way that is legitimate and "avoids a constitutional problem..."
On the first point--informing Congress ahead of time about constitutional deficiencies. In the Statement of Administration Policy for HR 2346, there is no mention about any of the problems the administration found in the bill. Now this does not necessarily mean that communication did not happen. It could have happened informally between congressional leadership and the administration--my friend who works inside Congress tells me that there is a great deal of informal communication--but given that the first point of his directive is a promise to communicate, it appears incumbent to put these concerns in a public document like a SAP.
The President does a better job than his predecessor in singling out one objection rather than lumping objections together, though he still does not get specific enough on what he is objecting to, thus placing the onus on outside parties to figure out whether something is or is not a problem. Obama stated his objections to "provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV..." If you look at these sections, you will find that they are divided into a number of sub-sections where not all fall into the problems he cited in his signing statement--that the Congress is attempting to direct foreign policy, either by explicitly telling his inferiors (in this case, the Secretary of the Treasury and a lesser extent US delegates to international financial institutions) what sorts of positions to take on international monetary matters or more generally international issues such as climate change or social/education policy within Third World countries. Thus if you scan the bill carefully, you find 15 specific challenges contained in Obama's challenge. Why can't the administration come out and single out specific provisions that are being challenged? If you read the signing statement without looking at the bill, you may conclude that Obama had five challenges, which is precisely what the administration wants us to think. Like all previous presidents, by being general in his challenges, it leads to an undercounting of challenges, thus suppressing the total number. And because it is a pain to sift through a bill and make a decision that one provision seems to fit while another doesn't, it makes sense why the President remains general. The problem is that he made a commitment to be transparent in his challenges, and so far hasn't been. Simply being different from his predecessor is not good enough.
Which brings me to the final point--his difference with the Bush administration. Obama is no different in going to great lengths to protect his foreign policy prerogatives--if you look back to all Presidents from Reagan forward, one of the top areas of challenge is in the area of foreign policy/defense policy issues. What is different for Obama is that he left reporting requirements unchallenged. In a couple of different sections, the Congress orders the Secretary of Treasury to make reports, due months or a year later, on how well objectives are being met, for instance. This reporting language is common, and the President often instructs his inferior to make the reports. The difference with his immediate predecessor is that Obama didn't object. President Bush often inserted language that objected to such language as a violation of the "unitary executive." The objection being (1) the president controls information inside the executive branch and (2) only the president can instruct inferior executive officers on what they may or may not share. For instance, when President Bush signed the "Intelligence Authorization Act for FY 2005" back in December 2004, he argued: "The executive branch shall construe provisions in the Act...that mandate submission of information to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties..." Obama let them slip without objection.
So Obama continues to use the signing statement in a more traditional manner, yet continues to fall short on the promises he made to make them more transparent.
