The presidential signing statement can come in one of two forms--a public signing statement verbally issued during a formal signing ceremony--the one where the president is flanked by important people who are given a pen once the president has finished. The second form is a private signing statement that is in written form only. Furthermore, the signing statement can be classified either as a rhetorical signing statement, largely designed to garner press and public attention, or as a constitutional signing statement, where the president either challenges the constitutionality of a provision or provisions of the bill or interprets a provision or provisions that is/are vague. Often times, a constitutional signing statement will be accompanied with a public statement, as I will demonstrate below. Regardless of who the president is, this combination does not change: in the public statement, there is no mention of the constitutional defects or the imprecise language. It is clear when this tandem is in effect, the president is attempting to direct the attention of the press, public, and the Congress away from the challenge.
Now President Obama. Remember that candidate Obama never claimed he would eschew the use of the constitutional signing statement. That was John McCain. Despite this, conservatives (whether it be Fox News or Republicans in Congress) try to make the case that President Obama is reneging on a campaign promise. Rather, Obama, like Hillary Clinton, used vague terminology to prepare for the day when they would make their own challenges. Both claimed that they would use the signing statement in the way it was used pre-George W. Bush. No one ever got either Obama or Clinton to get more precise than that, leaving it to all of us to discern what this means. Since Obama won the presidency, he issued a declarative memo outlining his policy on the signing statement. Of merit, Obama made the following promises:
1) He would inform the Congress about his concerns regarding the constitutionality of a provision or provisions of a bill as it is making its way through the legislative process. This should bring down the number of challenges in a signing statement.
2) When he does make a challenge, he will rely upon "well-founded" constitutional principles with which to ground it.
3) To insure "transparency and accountability," he will identify specifically which provisions are troublesome and specifically what part of the Constitution is being violated.
4) He will make a constitutional correction only for legitimate problems.
These are all jabs taken at the Bush administration--President Bush got to the point where it was not clear what part of the bill was defective, what specific constitutional provision was violated, and many of the challenges were little more than a policy difference with the Congress.
So with this, I move to the discussion of Obama's most recent signing statements. While Obama has moved to underscore "transparency and accountability" in nearly everything he does, it is my opinion that he still has a long way to go. Case in point is the signing statement. The administration has used the White House webpage to play a sort of sleight of hand with the device, keeping the focus on the rhetorical signing statement while obscuring the constitutional signing statement.
For example, the White House website today (May 20) highlights the two bills President Obama signed--First with a picture showing applauding members of Congress surrounding Obama in an action photo, second in a blog posting that underscores and amplifies the President's remarks and then third is a transcript of his remarks.
Now the problems. If you were interested in the signing statement but were not versed in the subterfuge with which an administration will go to hide what they don't want seen, you may be wondering how I could have arrived at the conclusion that one is a constitutional signing statement. That is because if you click on the link under the heading "Signed Legislation," you will be taken to the White House blog posting of the signing ceremony. OK, fine. Within the blog posting is a link to the President's actual remarks, which you diligently click. After clicking, you arrive at President Obama's official remarks, and you notice that President Obama combined two bills into one statement. One bill, the "Helping Families Save Their Homes Act" and the second, the "Fraud Enforcement and Recovery Act of 2009," or FERA 09 for short. And reading through both of these statements, you can find nothing that would resemble a challenge, let alone anything that could be regarded as critical. In fact, the transcript includes the parts where their were applauses (Applause) and laughter (Laughter). For instance, when Obama delivered a real zinger, you get this:
And because of that plan, all of you shoud know that interest rates are down, refinancings are up, and Americans who participate can save up to $2,000 a year--in effect, a $2,000 pay cut per family--tax cut-- excuse me. They don't need pay cuts. (Laughter.) That would be a good bill. (Laughter.)
So you conclude that I must be some kind of partisan hack seeking to bring down the Obama administration.
If you go back to the White House webpage frontpage, and scroll down to the bottom, in the place where the text is smaller and crowded with a lot of information. There under the heading "THE BRIEFING ROOM," on the far left side, down five links is a link titled OFFICIAL STATEMENTS. If you click that, you will find the link under 5/20/2009 titled STATEMENT BY THE PRESIDENT ON S.386. Now of course you would have to know what S. 386 is to know that it applies to an actual signing statement. It does not say "Statement by the President on the signing of S.386," so you may falsely believe that it is a Statement of Administration Policy, or SAP, about a bill making its way through the Congress. In this case, however, S. 386 is the constitutional signing statement for FERA 09. This is the one contains the constitutional challenge.
The second paragraph of this signing statement reads:
Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.
Now if you switch back to his formal remarks, with respect to the the Financial Crisis Inquiry Commission, it reads:
And finally, it creates a bipartisan Financial Markets Commission to investigate the financial practices that brought us to this point, so that we make sure a crisis like this never happens again.
"Where's the beef?" as Walter Mondale once asked of President Reagan during the 1984 campaign.
Now, what is the Financial Crisis Inquiry Commission? According to the Congressional Research Service, this Commission is established to "examine the causes of the current U.S. financial and economic crisis, taking into account fraud and abuse in the financial sector and other specified factors. Requires the Commission to submit a report on its findings to the President and Congress on December 15, 2010. Requires the Commission chairperson to appear before specified congressional committees within 120 days after the submission of the report."
According to the "New York Times," the Commission was created "in the wake of public outrage over corporate executive bonuses and other compensation for employees at firms receiving federal bailouts." In essence, it is a body created in the same fabric as the 9/11 Commission. The 10 members consist of six Democrats and four Republicans.
In Obama's challenge, he notes that he communicated his "concerns" to the Congress as the bill was being packaged, yet the vehicle by which those concerns were voiced remain a mystery to me. In most cases, when the administration finds a defect as a bill is winding its way through the Congress, it issues a SAP. For instance, in this SAP by the Bush administration to HR 2989 back in 2003, at the bottom the administration outlines it's constitutional concerns to a provision that contains an unconstitutional legislative veto. Yet in the SAP to S. 386, no mention of the Commission. In fact, there is no mention of any problem in the SAP, just Obama's enthusiastic support.
So the question is two-fold: By what vehicle did he register his concern AND to whom did the concern go? Because it seems that one member of Congress did not get the Obama message. In this story in "The Hill," Representative Darrell Issa, a Republican from California, and characterized as "the main Republican supporter of the Commission," seems to be taken aback at the challenge:
“Why is a president who talked so much about transparency now threatening to back away from it? If critical information is withheld from the inquiry on the financial crisis, its conclusions won’t have the credibility of the 9/11 Commission report,” Issa said in a statement to The Hill.
As to the challenge itself, President Obama seems to have broken his promise to be specific. He claims that the provision is construed so as not to "abrogate any constitutional privilege." What? Does he mean executive privilege? Does he mean, more broadly, the privilege that protects Executive Branch communication? Or the appointment of executive branch officers? Or separation of powers? I am totally confused because he is not specific regarding the nature of his objection. Sure, give him total props for telling us what the infraction is, but a big thumbs down for being fuzzy on what constitutional principles have been violated.
And finally, on the question of transparency, I have to raise, once again, an objection to the way in which the webpage is designed to frustrate, rather than assist, attempts at tracking the use of the signing statement. Say what you will about the Bush administration and its use of the signing statement. One thing you cannot criticize them for was the simple manner by which you could track the issuance of a signing statement. This has not been the case with President Obama. The website is clunky and cluttered. That aside, it is also designed to keep too many eyes from monitoring its actions. How else can you explain the glitzy pictures and headline pointing us to the signing of a bill versus the tiny, and compressed statements, coupled with arcane wordings, that actually direct us to the more private, written signing statement? Certainly Obama is not the first to play this game, but when you promise openness and transparency only to provide more of the same, you are going to get a heap of criticism. Deservedly so.
That is all I am saying.
