The signing statement has always been defined (even before I began my work on them in 1996) as statements that a president makes upon the occasion of signing a bill into law. These statements may be public, private, or a tandem of public and private. If you look at the "Daily Digest of Presidential Documents," you will find two bills Obama signed in February meet the criteria of a public signing statement in ceremony form. The first one occurred when Obama signed the S-CHIP bill in early February. Here the President clearly wants to draw a distinction between himself and President Bush, who blocked a similar bill in the 110th Congress. He explains what the program is, what the new bill will do to benefit millions of children (including bringing in one child who will benefit), and then takes the opportunity to respond to critics as well as blessing the "bipartisan" nature of the bill.
At the bottom of the statement, the GPO has classified this as a bill signing (Categories: Bill Signings and Vetoes). Yet on the digest page, they list the signing under "Remarks." Some who study the signing statement pay only attention to the listing on the front page of the digest and look only for the category of bill signings. But it is undeniable that the S-CHIP signing is a public signing statement.
Next on the list is Obama's signing of the American Recovery and Reinvestment Act of 2009, also categorized under "Bill Signings and Vetoes." This is also a rhetorical signing statement, but not one signed under ceremonial purposes. Instead, must of the statement is amplified by the Office of the Press Secretary. Much of it reads like the signing of the S-CHIP and is designed to foster greater public attention of an administration in action.
But let's not lose sight of the public signing ceremony. It is a public statement the president makes upon the occasion of signing a bill into law, but for whatever reason, the White House wants to make sure the rhetorical importance of the signing is not lost. Some may disagree, but again, if you conduct a literature review of the signing statement prior to 2000, you will find a consistent definition where both the public and private statements are considered the same thing.
A second matter that relates to Obama's recent signing statement. First, you can now find the signing statement available on the White House website, which was not the case on Wednesday when it was signed. One of Obama's challenges dealt with communications with Congress. As I noted, this has been a consistent challenge from presidents who wish to funnel all communications through the White House before it goes to Congress. It seems that one other interpretation was made, and that the challenge was a way to weaken whistleblower protections.
Senator Charles Grassley (R. IA) sent a letter to Obama demanding to know what he meant by this challenge. Grassley claims that the statement is "alarming" and it goes back on his word from the campaign trail, which is a partisan shot. Obama never said he would not use the signing statement, only that he would not use it "like Bush." Only McCain said never never, never. But on the particular challenge, Grassley argued:
...you singled out sections 714(1)-(2) of H.R. 1105 which contains an appropriations rider that Congress has passed in various forms since 1997. This rider has been an important part of appropriations bills for a decade and it is a significant part of Congress' efforts to protect the rights of Federal Government employees to provide information to Congress. The rider states that no appropriation shall be available for the salary of any officer or employee of the Federal Government that "attempts or threatens to prohibit or prevent, any other officer of employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress[.]"[4] This rider sends a powerful message to all agencies and Departments that any effort to block an employee from providing information to Congress will not be tolerated.Before you dismiss Grassley as a partisan hack, keep in mind that he took on the Bush administration back in 2002 when it attempted to weaken a whistleblower provision that was part of the Sarbanes-Oxley bill. Had it not been for the vigorous oversight by Grassley and Patrick Leahy (D.VT), Bush's interpretation may have stood (you can read about it in this 2005 paper I wrote).I am deeply concerned that the signing statement you issued will undermine this important whistleblower protection included in the Omnibus Appropriations Bill. Not only is your signing statement contrary to your campaign statements, it also goes beyond the traditional broad signing statements authored by previous Presidents. In specifically singling out this provision, you have gutted the legislative intent of this provision by stating that it does not "detract from [your] authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress[.]" (emphasis added). This is a shocking statement that acknowledges that you would be willing to give an order preventing employee whistleblowers from making disclosures to Congress. I do not see how this statement can be reconciled with your campaign promise to protect whistleblowers. In fact, it is even more egregious than simply breaking a promise, because it actually restricts current and previously existing whistleblower protections.
While I am sure that Obama's challenge is not in the vein of the Bush administration, it does remain to be seen how he will respond to Grassley's challenge.
