The Obama Signing Statement--More of the Same

As I promised in my last post regarding Obama's position on signing statements, there would be a constitutional signing statement in the immediate future. Two days later (today, 3/11), Obama issued his first constitutional signing statement. First, a couple of words:

• A constitutional signing statement is defined as any signing statement that contains one or more provisions that challenge the constitutionality of a section(s) of the law, or where the president needs to define or "interpret" a section(s) of the law.
• For all of his candidate Obama's talk of transparency, their website is anything but. The Bush administration placed all of their signing statements on the "News" section of the White House webpage, listed day to day. In fact, toward the end, they were pretty good about putting the signing statement on the White House webpage and not in the "Weekly Compilation of Presidential Documents," where you would normally find signing statements. The current signing statement, taken from the "Boston Globe," who was good enough to provide a .pdf copy, says it came from the Office of the Press Secretary, yet every link on the White House webpage to the press secretary or any official statements do not contain a link to the signing statement. To me, that is not transparency.

Now, the signing statement. The signing statement is the spending bill that is getting attacked tonight on the national news because it contained earmarks, going against Obama's promise to combat "wasteful" earmarks (Jake Tapper: "...contained 9,000 earmarks despite his promise not to sign anything with earmarks" Then, cut to John McCain. Then at the end, mention that 40% of the earmarks come from Republicans.).

Officially, it is H.R. 1105, the "Omnibus Appropriations Act, 2009," and it has $410 billion in spending. And Obama breaks precedent with previous signing statements by not just drawing attention to the constitutional challenges, but also placing them up and front in lieu of 1) a description of the bill and 2) all the good things that it does.

Obama writes:

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to
well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

He then bulletpoints the challenges:

1) Foreign Affairs--he singles out 3 provisions that "unduly interfere with my constitutional authority in the area of foreign affairs" because they purport to tell him how he should proceed with negotiations with international organizations and foreign governments.
His response: He does not take them to mean he is limited in how he negotiates with any foreign body.
Effect? Congress can tell him "til the cows come home" what he should or should not do vis a vis foreigners, but at the end of the day, he will do what he wants.

2) United Nations Peacekeeping Missions--this one was a favorite of the Republican Congress when Clinton was in office. To make sure that our forces are never under the direction of a foreign body, the Congress places boilerplate language instructing the president that he cannot send armed forces to international organizations if they are likely to receive orders from these organizations. In this bill, Section 7050 of Division H forbids the president from doing just this.
His Response: Since this bill seems to constrain his Commander in Chief power as well as interfere with international agreements, he is left with rectifying the provision so it does not conflict with those two things.
Effect: It remains to be seen how this gets carried out because it is not clear what Obama claims he will do. Rather than saying: "I won't execute this provision" or "I won't execute this provision until Congress corrects it," Obama says this: "I will apply this provision consistent with my constitutional authority and responsibilities." I will leave you to divine the meaning.

3) Interference with the control of information. This is an automatic challenge of each president since Reagan. Congress consistently attempts to force executive branch agencies to provide information about how it is carrying out the law, and each president since Reagan wants all interbranch communication to be funneled in and out of the White House. In fact, this is a central tenet of the unitary executive theory (and reason to believe it is alive and well). Obama finds two provisions defective: Sections 714(1) and 714(2) in Division D of the bill. They prohibit the use of "appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress." This is Congress's response to the unitary executive control over inferior executive officers. Congress has constitutional authority over appropriations, thus can say anyone receiving federal money cannot issue orders to bureaucrats telling them they cannot speak directly with Congress.
His Response: Despite what Congress says about its constitutional authority over appropriations, he is still the head of the executive branch, accountable for the actions of all inferior executive officers. Furthermore, some information is sensitive and needs to be approved before it is released. Hence:

"I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

In other words, to all executive branch employees, regardless of what the Congress demands, you are not to act until you have the approval of a representative from the White House (OMB).

4) Legislative Aggrandizements (committee approval, or "legislative vetoes"): In 1983, the Supreme Court found the legislative veto a violation of Bicameralism and the Presentments clause of the Constitution. What it does is condition the execution of the law upon post-enactment approval of a committee in Congress. Despite the Supreme Court decision, it has not stopped the Congress from using them AND from presidents objecting to them. This challenge seems to me to stand in clear violation of his promise in the memo to list the precise provisions under challenge. Instead, Obama starts: "Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees." Numerous provisions? In other words, do the work yourself--go through the bill and isolate any provision that seems to list a legislative veto. I thought we were done with this, and instead, were going to be given the specific location of the objection? Guess not. But wait, there is more. In addition to the "numerous provisions" listing, he also makes note of two extra provisions as problematic. He notes that "one other provision" allows congressional committees to establish guidelines for costs associated with security improvements in government buildings. And then, "Yet another provision" forces the Secretary of the Treasury to abide by the demands of a board that contains members of Congress or their staff. This is a different problem. This is a "hybrid" commission, meaning it mixes the executive and legislative functions (in this case).

His response: As to the "numerous provisions" complaint, Obama promises to try to inform Congress of the actions its going to take in advance, but in the end, the decision is his, not a committee of Congress. With respect to the provision that allows Congress to establish spending limit guidelines, Obama treats these as advisory. Sure, we will take it under consideration, but in the end, the decision is his. And then the "hybrid commission" problem, he will treat it as nonbinding. Let them recommend all they want, but it no one should take them seriously.


5) Recommendations violation--These also show up a lot in signing statements. Congress tries to tell executive branch agents what sorts of recommendations they need to make in future requests for money. Because the president may recommend legislation himself, this is seen as a violation of presidential prerogatives. Obama once again continues the practice of challenging such violations, and continues an irritating practice from his predecessors (and one that also violates his pledge of clarity). The problem with this challenge is similar to the legislative veto challenge from above. Instead, what he writes is that "Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A)" requires him or his agents to submit budget requests in specific forms to Congress. If you are going to the trouble of listing some of the problems, why not list them all? If you pledged to improve over your predecessor, then why not do just that? Instead it is left up to all of us to try to figure out what else is in violation. In the past when I have found language like this, quite often there are no other provisions than the ones listed. Thus you burn a lot of time chasing a ghost.
His response: Because the Constitution gives him the power to recommend, these provisions are "precatory" or merely advisory (precatory was a favorite of Clinton--most others preferred its cousin, hortatory).

And you may not have heard much about the signing statement on the nightly news, and before you jump to conclusions of liberal collusion, let me offer two alternatives. First, many covered the signing statement. But it was the public signing ceremony, which was dramatically different from the private written ceremony. Why the two? To confuse those who don't pay much attention to these things (like the press and Congress). It is another version of being distracted by one hand while the other hand robs you. And second, this constitutional signing statement did get a lot of coverage, but mostly in the printed press, like the Boston Globe. As of this moment, Google News shows over 3,200 articles on the bill signing, ranging from the traditional news to specialty publications to blogs. That is a lot of attention.

In conclusion, Obama did not disappoint. Like "Wild Bill" Hickock, in the HBO series "Deadwood" told a woman whose husband had been murdered by road agents, "Listen to the Thunder." The memo of two days ago being the thunder preceding the signing statement. What is disappointing however is the continuing practice of not being concise regarding the specific provisions under challenge, leaving in its place the general phrasing: "numerous provisions." We were told to expect better. I at least took him for his word.

The Mark of Cain and Meet the New Boss

There are a couple of items of interest today regarding presidential power and the signing statement. The first is an article in today's New York Times that deals with the plight of George W. Bush's legal team. It appears that some are having trouble finding work, and others may never be able to leave the country.

International legal experts use a branding label called the "Mark of Cain," which is a term used for those in power who violate the human rights of their citizens. If the international legal regime is tight, it means that these people will forever be hunted until they are brought to justice. Thus they often become prisoners in their own country, for fear of leaving and then getting snatched by countries who are obliged by international law to bring them to justice--think for instance of Pinochet. This is the prospect facing folks like former OLC head John Yoo:

For more than four years, the Justice Department ethics office has been investigating his work and that of a few of his colleagues. A convicted terrorist has filed a lawsuit blaming Mr. Yoo for abuses he says he endured. Law students have led protests and the Berkeley City Council even passed a resolution in December calling for Mr. Yoo's prosecution for war crimes.

Yoo, and others, argue that this is unacceptable--that he is being wrongly persecuted for doing his job--for giving his client the advice he sought, particularly during an extraordinary time like the 9/11 attacks. And if he can be persecuted for this, what does this say for future presidents seeking the candid, if not extraordinary, legal advice of their legal counsel?

While that may be true, what is really at issue here is whether Yoo, Addington, and others gave their advice under the canopy of the Constitution, federal and international law, or whether they took advantage of the circumstances to advance a conservative legal theory out of step with the rest of the country?

I fall on the latter. For example, when Lincoln took the powers he did, he was always mindful of the Constitution and the laws--and mindful about how he would be judged in the future. Thus when the controversy ended, Lincoln asked the Congress and the courts to judge what he had done. In the case of the Bush legal team, there was no concern for either, thus they are reaping the seeds they sowed.

In the second, the issue of the signing statement has reared its ugly head once again. When Obama was on the campaign trail, he was careful, unlike McCain, to allow himself wiggle room on the use of the signing statement. Where McCain claimed he would never, under any circumstances, use the signing statement, Obama simply said that he would not use the signing statement as President Bush had. That's a loophole the size of the Pacific Ocean. Well, that loophole didn't get any smaller today in a memorandum issued by Obama to all Executive Branch agencies.

Obama outlines the history of the signing statement, and how it had been used carefully to "ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill." But recently, that has changed. The past practice of using the signing statement to settle "policy disagreements" abused the sober history of this device, thus the need to outline how it will be used under Obama. This of course is a generous view of the history of the signing statement--Bush was not the first president to use the signing statement to settle policy differences. He was just the first to use them to such an extent that it raised public attention. And Bush did deviate in one major way from his predecessors--he began using the signing statement without grounding it in some part of the Constitution and without giving the Congress a clear ideal to what was specifically under challenge. That is an important difference that does merit the Bush administration criticism--not that he was somehow the first to use it.

So what is Obama's plan for the device? He lists four principles to which he will adhere:

1. The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
2. Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
3. To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
4. I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

I will take these point by point. In point 1, the principle he is claiming is not a new one. Recent presidents have maintained extensive communications with the Congress in an effort to shape the final bill the president receives--these communications can be found in things like SAPs, or Statements of Administration Policy, maintained at the OMB website (whitehouse.gov/omb). As my colleague Bryan Marshall and I have found, recent presidents use the signing statement in conjunction with SAPs to squeeze all they can from legislation, giving them final say over legislation. In point 2, legislation coming for the president's signature is presumed to be constitutional. But if you read on, that may be swell, but if the president determines part is unconstitutional, then he won't enforce it. So throw Congress a bone. We won't just assume you all don't know what you are doing down there. We will at least assume you know what the Constitution is all about, but that doesn't mean we will believe that once we actually read what you send. Seems insulting to me. Points 3 & 4 are a direct slam against the Bush administration. In point 3, if they do challenge a provision, they will "make clear the nature and basis of the constitutional objection." By 2005, the Bush administration had begun to make challenges without any constitutional grounding. And to follow that up, point 4 claims that he will only challenge if he can make a legitimate argument.

What follows is also interesting. In the memo, he informs all agencies that they are not to follow previous signing statements without first clearing it with the Attorney General--not their own counsels--but the AG. This actually brings up an interesting, and understudied, part of the signing statement, and one I briefly explored in my dissertation. A signing statement has a shelf life longer than the administration that issued it AND a president can reinterpret legislation signed by previous presidents--in essence, issue a signing statement post-facto. President H.W. Bush did this early in his administration with the policy of federal money and abortion--an action that led to the Supreme Court case Rust v Sullivan.

Either way, what is of big concern for those interested in the signing statement is that it is alive and well. What President Obama is doing is clearing the way for his use of the signing statement. Much the same as Clinton did in 1993, Obama is signaling that he will make use of the signing statement, with all due respect to the Congress, and not use like Bush. But use it he will!