Karl Rove offered a laundry list of items where Obama has reneged on campaign promises, and one of those promises is the signing statement. Rove has lept upon the recent information in last week's New York Times on how Obama has gone underground with his constitutional challenges, no longer using the signing statement, and instead using OLC opinions which are not always published. It is interesting that Rove relies upon this Times piece given how much effort the Bush administration expended trying to undermine it back in 2006 and 2007.
First, let's brush aside the things Rove got wrong. He argues that presidential signing statements date to "Andrew Jackson." They date to James Monroe. Rove argued: "Because of Washington's hyperpartisan atmosphere, President George W. Bush drew heated criticism from Democrats for his signing statements." Actually the criticism was bipartisan--and leading the attack was then Republican Arlen Specter, who held the Senate hearings on the Bush administration's use of the signing statement in June 2006.
Next he argues: "Among [Bush's] toughest critics was Barack Obama..." That simply is not true. Obama was not a leading critic of the Bush administration's use of the signing statement. In fact, among the toughest was Senator John McCain (R. AZ), who was the only candidate for the presidency in 2008 to swear off using the signing statement for any reason should be become president.
Now the hypocrisy, which Rove claims is all Obama's. Rove writes:
Recently, the Obama administration admitted that after receiving the letter from Messrs. Frank and Obey, it stopped the practice. But the president still has aides examine each bill to identify provisions the administration will disregard. It's just that Team Obama isn't telling Congress which provisions it is ignoring. It's right for him to defend the office of the presidency. The problem is that he is doing it in a way that violates his own standards of transparency and accountability.
Wow. First, ever since the Reagan administration, it has been standard practice for the president's advisers to examine each bill to identify those provisions that warrant a challenge. In fact, up to the Bush administration, this was the sole duty of the Office of Legal Counsel inside the Department of Justice. If you want to complain about political advisers making suggestions about challenges, then Rove should have stayed in-house given that the vice president and his right hand man Addington were making decisions about challenges that contradicted the advice of the Office of Legal Counsel (guardians of the Constitution) as well as the President of the United States (see the 12/30/05 signing statement of the Detainee Treatment Act).
And second, Rove cannot possibly be condemning another administration about its lack of transparency in its use of the signing statement. If we go back to the strategy sessions in the Reagan Justice Department over the use of the constitutional signing statement, Samuel Alito, a young attorney in the DoJ, advised the use of constitutional challenges over bills where no one would pay much attention in an effort to slip it past the Congress. And then there is the Bush II administration. One of my Bush-era FOIA request asked for challenges that were reported to the Congress, which is a requirement written in statute. They gave me challenges made during the Clinton administration. This despite a GAO finding of several provisions of law that were not enforced. And then there are the signing statements themselves. Many were so vague that it was impossible to determine what was exactly being challenged or why. And then in 2007 and 2008, after public attention was drawn to the use of the signing statement, the challenges disappeared. Where did they go? It is clear they went underground to the OLC. I am convinced that the Obama administration's new strategy simply picks up where the Bush administration left off. Using the OLC to issue the challenges so as to avoid public scrutiny. My next round of FOIA requests will determine whether this is true or not.
So to me it takes a tremendous amount of moxie to criticize any administration for its lack of transparency given what the Bush administration did--often with the help of Rove--political operative par excellence! But then again, he picked the WSJ's OpEd page, which is never short on hypocrisy when it comes to criticizing Democrats.
