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Obama’s first signing statement

The previous post discussed President Obama’s memo on the use of signing statements and signaled a more modest approach than the previous Administration. Yesterday, the President issued a statement in connection with signature of H.R. 1150. The President explained:

Today I have signed into law H.R. 1105, the “Omnibus Appropriations Act, 2009.” This bill completes the work of last year by providing the funding necessary for the smooth operation of our Nation’s Government.

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

  • Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
  • United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.
  • Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.
  • Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
  • Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only “such Measures as he shall judge necessary and expedient” (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

BARACK OBAMA

THE WHITE HOUSE,
March 11, 2009.

A couple of comments.

First, did the Obama Administration communicate all these concerns to Congress before the final version of the bill got to the President? I know there was a rush to get this legislation adopted, but I would hate to think that the Justice Department was weighing-in on these concerns after the fact. It seems to me that it is really incumbant upon a president to a least attempt to negotiate on issues of constitutional concern before the legislation is presented to him or her for signature.

Second, it does seem as though there are some legitimate consitutional impediments with the legislation. Just to note a few.

  • Command of US troops. I believe– and have testified to this effect– that as Commander-in-Chief, the president has the constitutional authority to delegate the command or operational control of US troops to non-US commanders. This has been done numerous times in past conflicts. It also seems absurd that Congress would seek to require that the president be limited from doing this unless his advisors had so recommended.
  • Negotiations. One of the core authorities of the president is to conduct negotiations with other governments and organizations. In the bill, Division E, Title IV, sec. 412 provides:
    • SEC. 412. In entering into agreements with foreign countries pursuant to the Wildfire Suppression Assistance Act (42 U.S.C. 1856m) the Secretary of Agriculture and the Secretary of the Interior are authorized to enter into reciprocal agreements in which the individuals furnished under said agreements to provide wildfire services are considered, for purposes of tort liability, employees of the country receiving said services when the individuals are engaged in fire suppression: Provided, That the Secretary of Agriculture or the Secretary of the Interior shall not enter into any agreement under this provision unless the foreign country (either directly or through its fire organization) agrees to assume any and all liability for the acts or omissions of American firefighters engaged in firefighting in a foreign country: Provided further, That when an agreement is reached for furnishing fire fighting services, the only remedies for acts or omissions committed while fighting fires shall be those provided under the laws of the host country, and those remedies shall be the exclusive remedies for any claim arising out of fighting fires in a foreign country: Provided further, That neither the sending country nor any legal organization associated with the firefighter shall be subject to any legal action whatsoever pertaining to or arising out of the firefighter’s role in fire suppression.

This provision raises an interesting consitutional question: Can Congress specifically direct the President what to include in an international agreement and what to exclude? Does this interfer with the authority of the President to conduct international negotiations? Arguably, if the President has the authority to conclude certain executive agreements in areas of core presidential authority — commander-in-chief, authority to recognize foreign states and governments, for example– without Congressional consent, then the President could claim that Congress does not have such authority to restrict the content of such agreement. But there may be other types of executive agreements that the President can conclude only because Congress has authorized such agreement. In those areas, would it be reasonable to assume that Congress could impose such limitations?

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One Comment

  • Max Lybbert says:

    Thanks for digging up this list. Some of the points raised in the signing statement actually are legitimate Constitutional concerns. Others may be legitimate concerns but don’t appear to be Constitutional concerns to me (not a lawyer, and definitely not a Constitutional lawyer).

    For instance, while I agree that the President can put US troops under the command of foreign military officers, I don’t see any strict legal problem with Congress exercising its power of the purse to hamstring such an effort. Personally I think it’s silly for Congress to raise such a broad objection now (without any evidence that putting US troops under foreign command would cause trouble), but I don’t see why Congress can’t Constitutionally put up roadblocks in the form of funding.

    Likewise, while President Obama and his Administration are Constitutionally allowed to submit budget requests in any form they wish — including on the back of a cocktail napkin — it seems reasonable that Congress can let those requests languish as long as desired if they aren’t made according to Congress’s preferred form.

    But overall I think this is a reasonable signing statement. Thank you for digging it up, as most news stories I’ve seen simply say “Obama has issued a signing statement” without including the text of that same statement.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.