First, Obama makes three objections to the bill--and given the size of this bill, and all the things needed to cobble it together, three objections is not bad.
The first two objections--to Sections 1112 and 1113--involve tying the administration's hands in prosecuting detainees held at Gitmo. The fact that many of these individuals have been held for years without the chance of trial violates every ideal in which this country stands for, and is shameful. Section 1112 bars the use of funds "for the remainder of 2011" to bring Gitmo detainees to trial in the U.S. Section 1113 bars the administration from handing the detainees to another country for trial or prosecution unless certain conditions are met--apparently the fear is that transferring the detainees to another country (with less rigorous judicial proceedings than ours) will mean they get off completely free and return to the battlefield to fight Americans another day.
Now here is what the administration says it will do regarding these two provisions:
Despite my continued strong objection to these provisions, I have signed this Act because of the importance of avoiding a lapse in appropriations for the Federal Government, including our military activities, for the remainder of fiscal year 2011. Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.
Contrast this with a typical Bush signing statement. For instance, in the "Intelligence Authorization Act for FY 2003, Bush wrote:
The executive branch shall implement sections 325, 334, and 826 of the Act, and section 8H(g)(1)(A) of the Inspector General Act of 1978 as enacted by section 825 of the Act, relating to submission of recommendations to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.
There--nothing about working with Congress or nothing about mitigating their effect. All you have is a dismissal of the provision because it violates the constitutional ideal of the unitary executive branch. Given how Obama's first sentence is that he will work with Congress to repeal the provisions contradicts any notion of an "end run" around Congress, as suggested by Obama's critics, typified here and here.
The third challenge--to Section 2262--is drawn criticism in that it is Obama's attempt to protect "Czars." Section 2262 denies funds to pay for: 1) the Director of the White House Office of Health Reform, 2) Assistant to the President for Energy and Climate Change, 3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy, and 4) White House Director of Urban Affairs. As James Risen notes in today's New York Times, "[A]ll of the positions affected by the budget bill are vacant or have been eliminated, and it is not clear whether the White House wanted to fill any of them."
But in Obama's signing statement, this section did draw the fiercest challenge:
Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.
Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.
As my friend Lou Fisher noted in an email today, it is ludicrous for Obama to make such a claim as the Executive Office of the President and all who staff it are created and funded by Congress. There is no "prerogative" in the Constitution protecting such advisers. But while there might not be language officially declaring a constitutional prerogative, there is enough political precedent that might. This area of protecting the "supervisory and deliberative" processes is one of the most often cited challenges in presidential signing statements. Congress has made numerous offerings to try and cut off who the president seeks advice from, and have rarely been successful. There is the recognition that dates to FDR that the president should be allowed unfettered advice without congressional interference, and there is the consistent defense that would make a judicial challenge by the Congress tenuous at best.
It is clear that this provision is all about politics--Members can go back to their districts and proclaim their success at ending the attempts by Obama at burdening the taxpayer with "Obamacare", climate change, and the "bailout" of automakers, even though this provision will do absolutely nothing of the sort.
