I have just completed a paper looking at the question of whether the unitary executive theory survived the Bush administration. In this paper, I look at how the Obama administration has exercised power consistent with the unitary executive, and that he has used the signing statement in a way that resembles his predecessors, including his immediate predecessor, George W. Bush.
President George W. Bush does not get much praise when it comes to his use of the signing statement, and most of the scorn is not misdirected. His administration's abuse of the signing statement--the blame I direct at his vice-president--has made it more difficult for his successor to use it without immediate criticism. Prior to the Bush administration, not many people, as I can attest, cared much at all about the signing statement. Not true today. But there were legitimate ways in which the Bush administration used the signing statement to challenge provisions of law (the so-called constitutional signing statement).
For example, as I documented a year ago, the Bush administration was handed a bill regarding India's nuclear program that had provisions that were offensive to the Indian Government and people because of provisions that seemed to weaken the territorial integrity of the country. As a way to mollify the Indian Government and keep them committed to US policy, the Bush administration showed them it's signing statement that challenged the controversial provisions. This made the Indians happy, and their objections were dropped.
Flash forward a year, and rather than the Indian Government, it is now Pakistan, and another foreign policy bill, though this time designed to provide Pakistan with security assistance for the next several years. Officially titled the "Enhanced Partnership with Pakistan Act of 2009," it is more commonly referred to as the Kerry-Lugar Bill, after its two sponsors, Senators John Kerry (D. MA) and Richard Lugar (R. IN). In particular, there are provisions of the bill that seem to tell the Pakistani government how it should use its military and security forces or suggests that the Pakistan is not doing all it can to crack down on terrorist organizations housed inside the country. This has created some diplomatic problems for the United States. And what has the US done to temper the concerns of the Pakistani leadership?
According to this story in "The International News," the proposed way out is a potential signing statement to challenge the contentious provisions of the bill. It notes that though the bill becomes law with the contentious provisions intact, "...the people of Pakistan would have a word from the President of the United States that America respects Pakistan's sovereignty" because the "statement that the...president makes, when he signs a bill into a law, is also meant to explain the president's intent how to execute, or carry out, the law including giving guidance to his administration..."
Thus the signing statement becomes a completely legitimate, and necessary, device that allows the president to deal with the twin pressures that come from the domestic and international spheres. It is funny that this story of the signing statement--particularly the constitutional signing statement, does not get told, unless you are privy to international newspapers, which covered this fairly extensively.
