The Obama administration has been hyping all week a potential signing statement to the National Defense Authorization Act of 2012. TPM reports on the 21st, in a question to a reporter from the Wall Street Journal, that Obama planned a signing statement to the National Defense Authorization Act's "controversial provisions"--in particular, a ban on trying Gitmo detainees here in the US and sending enemy detainees to 3d party countries. This is a recurrent theme between the Congress and the administration, similar to the back and forth over the White House "Czars". Last January, Congress sent the White House the "Ike Skelton National Defense Authorization Act for FY 2011", and the President issued a signing statement objecting to Sections 1032 & 1033--the Gitmo provision and the 3d Party country ban. In that signing statement, the President simply objected to the provisions but didn't officially challenge them. In the present case, the administration seems to be ratcheting up the volume by having the attorney general announce the challenge. But I digress.
While all the attention has been on the forthcoming challenge, the administration issued a signing statement to H.R. 2055, the "Consolidated Appropriations Act, 2012." The signing statement has at least 23 separate and distinct challenges, ranging from separation of powers concerns to foreign policy prerogatives to "Take Care" protections--it is a sweeping statement to a massive piece of legislation. I say that it has at least 23 challenges because the actual number is uncertain. Remember that Obama came into office never refusing to use the signing statement, but promising when he used it he would be transparent--we would know what precisely was being challenged, what constitutional provision it violated, and Congress would be informed whenever possible. In the latter days of the Bush administration, the objections became so vague that it was difficult to understand what challenges were at issue. Now it seems that this is the case with the current Obama administration. For example, Obama writes: "...several provisions in this bill, including section 627 of Division C and section 512 of Division D...". So he lists two of the provisions but not the other ones. Or later he writes "Numerous provisions of this bill purport to condition the authority of executive branch officials to spend or reallocate funds on the approval of congressional committees." He lists a couple of examples, but not enough to account for "numerous".
The signing statement also formally took on Congress's attempt at banning the trial of Gitmo detainees on US soil as well as sending detainees to 3d party countries. Obama writes that both of these provisions (Section 8119 of Division A for Gitmo and Section 8120 of Division A for the transfer) "violate separation of powers principles" and he intends on interpreting "them in a manner that avoids constitutional conflicts" while working with the Congress for their repeal. The same language also appears in the National Defense Authorization Act, FY 2011, and thus we should see a similar signing statement with identical language contained in the current statement. It also begs the question of why the focus on the latter statement, when he made the challenge in the former?
One final interesting thing to note about this signing statement that I cannot believe is a oversight or a mistake (generally nothing is cleared for publication in the White House without a serious vetting). As I have noted before, the administration has deliberately gone out of its way to make finding these signing statements difficult, something even the previous Bush administration did not do. First, they got rid of the Weekly Compilation of Presidential Documents, long the clearinghouse for presidential signing statements (and the documents I spent hours pouring over when I did my dissertation work). They said they were switching to the Daily Compilation of Presidential Documents, but then for the longest time they did not update the information past 2009. Even now it is only updated through October 20, 2011. Second, they have made a mess of the White House website. In the Bush administration, all one needed to do was to go to the "News" site to find the signing statements, but no more. The Obama administration has a place for "Signed Legislation" and a place for "Statements & Releases", and sometimes you can find signing statements at one and sometimes at the other. But what is clear is that there is no one place to go and find them. Now for the thing that struck me as interesting. In the recent iterations of signing statements, they were categorized under "Statements & Releases." The most current signing statement--and the one I refer to here--is categorized as Presidential Memoranda. I say this because signing statements are not Memoranda. Memoranda has its own classification similar to an executive order. I ran this by Lou Fisher today, and he agreed with me that a signing statement is a different beast. It may be that the administration is beginning the work on nudging the signing statement over the line into legal relevancy. Whatever the case, it merits closer attention to future signing statements.
