There are a couple of points in the column that merit comment. Toward the bottom, Savage writes:
Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions. He also challenged, without listing them, “numerous provisions” in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.
This represents a problem for those like me who research the signing statement--the neglect that rhetorical signing statements receive simply because they are not as sexy as their constitutional brethren. To date, Obama has issued 13 signing statements of which 5 can be classified as constitutional. What this means is that 5 signing statements contained provisions that challenged the constitutionality--or interpreted--provisions of the bill contrary to legislative intent. The majority--which has been the case to date for every president BUT the two Bush's--issued more rhetorical signing statements than constitutional ones. The rhetorical signing statement is designed to draw public (press/congressional/international) attention to the bill the president signs.
It is important that we do not forget both have important implications for power.
Later, Savage writes:
Still, unlike Mr. Bush, Mr. Obama has not mentioned the Unitary Executive Theory, an expansive view of executive power that conflicts with Supreme Court precedent. His only invocation of his commander-in-chief authority was limited, taking aim at a requirement that he get permission from a military subordinate before taking an action.
We must be cautious not to make the assumption that because he does not use the phrase "unitary executive theory" that it is not there. The unitary executive theory, developed by attorneys in the Reagan administration, has been around now through four successive presidencies. It's tenets buried deeply within and throughout the entire Executive Branch. And it was rare for a president to refer to it specifically and deliberately until the previous Bush administration, which could not stop mentioning it whenever and wherever it had the chance. But because the president does not say it aloud does not mean it is not there. The Clinton administration never used the term, and yet it supported its key tenets as much as the Republicans before and after did.
So look at the facts: Obama has people in key places--for instance the DOJ--who are proponents of the theory (see for instance the work of Solicitor General Elena Kagan). He has not revoked an executive order born out of the Reagan administration empowering the OMB--and in particular the OIRA--to monitor the behavior (on behalf of the White House) of the executive branch agents. And he continues to use the signing statement to advance principles of departmentalism, which is consistent with a key tenet of the theory.
So while Obama may not be behaving like his predecessor, the evidence thus far confirms that he is behaving like a unitarian.
