So suggests the "National Journal," in an article today on the signing statement (sub. req.). The title reads: OBAMA FOLLOWS SUIT ON SIGNING STATEMENTS: THE PRESIDENT DRAWS FIRE FOR CONTINUING BUSH PRACTICE, BUT IT MAY NOT MEAN MUCH. There you have it.
Quoted in the article is Lou Fisher, Gene Healy of CATO, Eric Posner (a defender of Bush signing statements (.pdf)), Bruce Fein and Neil Kinkopf, OLC attorney for Bill Clinton and critic of Bush signing statements.
The thrust of the article is to figure out the meaning behind Obama's signing statement--first, did he break a campaign pledge and second, is he behaving like President Bush?
The writer, Dan Friedman, repeats the false claim that Obama's March 11 signing of the Omnibus spending bill is his "first signing statement." As I discussed in this post, it was the first time Obama issued a "constitutional" signing statement.
After he provides the background to the controversy, including Obama's memorandum explaining how the signing statement would be used, he gets to the experts. First up is Posner, who says that "signing statements have almost zero practical effect." Pointing to the GAO studies in 2006 and 2007, they found that signing statements have no influence over judges and in an examination of Bush's signing statement to approprations bills, and that in at least nine cases, the law was not executed as intended--but the GAO could not conclude that it was the signing statement that was the cause.
The author also underscores the minimal effects of the signing statement by pointing to a Bush signing statement in January 2008 that challenged, for instance, the creation of a "wartime contracting commission" that had members appointed by someone other than the president. As he notes, despite the challenge in the signing statement, the White House "quietly appointed the commission's members" and complied with the law as written. But it wasn't that simple, and the signing statement actually was an important catalyst. As I wrote here, the White House only allowed the Commission to go forward after it had met with congressional leaders to work out the specifics on what the Commission would do. Thus the challenge served as the impetus to further negotiations, bringing the Congress closer to the White House's position on the bill.
Thus what we should take from this article? The thrust is the signing statement really doesn't have that much effect on the execution of the law, but what effect it does have--at least when Obama uses it--should in no way be taken as a sign that the Bush administration's interpretation of power has returned. If they do not mean anything, then we should no longer concern ourselves with studying them. And if they are meaningful, then it should not matter that Obama is different from Bush.
Either way, this particular article is a muddy mess.
