Some thoughts on Obama’s use of signing statmentsJanuary 7, 2012 # 12:58 pm # Armed Conflict, Foreign Policy, Human Rights, Supreme Court # No Comment
Several previous posts have discussed the use of signing statements by American Presidents. Most recently, President Obama issued signing statements for both the Consolidated Appropriations Act, 2012 (H.R. 2055) and the Defense Authorization Act, 2012 (H.R. 1540). As previous posts have noted, I have significant reservations about the use of these statements. In a recent Reuters article, I provided several observations about signing statements. Susan Cornwell of Reuters reports:
WASHINGTON (Reuters) – It was New Year’s Eve when President Barack Obama reluctantly signed into law the legislation he had earlier threatened to veto: a mammoth U.S. defense bill with a multitude of restrictions on the administration’s handling of detainees.
Administration officials had spent weeks trying to rewrite the legislation in Congress. And although Obama signed it into law, he also issued a lengthy, at times indignant, “signing statement” listing the many ways he disagreed with the measure, and suggesting he may even ignore parts of it.
This was the sort of thing that Obama promised he would not do back when he was a candidate for the White House. He told the Boston Globe in 2007 that he would not use presidential signing statements to “nullify or undermine” instructions from Congress enacted into law, declaring that his predecessor George W. Bush had gone too far down that path.
Typically, a U.S. president merely puts his signature on a bill in order to sign it into law. Bush, however, often added “signing statements” to assert, for example, that a particular bill infringed on the constitutional powers of the presidency.
In the past two weeks, Obama has issued two strongly worded signing statements criticizing provisions of new laws. The previous one was two days before Christmas, when the president signed into law a massive bill funding the U.S. government through the end of the current fiscal year on September 30.
“I would say that his most recent signing statements are of the variety common to the Bush presidency, where the president makes some strong constitutional claims” but is vague on what he would do about them, said Christopher Kelley, a professor at Miami University of Ohio who has researched presidential signing statements.
“Obama seems to be saying that he would abide by the law until he was no longer able to abide by the law. That is a hard thing to quantify,” Kelley said.
“Signing something and saying you are not going to follow portions of it is problematic,” said Anthony Clark Arend, a professor of government at Georgetown University. “I believe that the framers of the Constitution would have felt that’s exactly the kind of legislation you need to veto.”
But the recent defense and the spending bills were important to the running of the U.S. government, and Obama was almost “held hostage” by them, Arend added. So Obama signed them – with reservations.
“He is declaring he will not follow it if he feels it is in the best interest of the country,” Arend said.
Many U.S. presidents have attached comments to laws as they sign them. But the practice became controversial under Bush, especially after he signed a torture ban in 2005 but attached a statement that legal specialists said reserved the right to bypass it as commander in chief.
CLAIM OF EXECUTIVE AUTHORITY
Obama, a Democrat, has issued 29 signing statements since he entered the White House in 2009, versus 172 during the eight-year presidency of the Republican Bush, according to Kelley.
“We’ve never had a president assert as broad a claim of executive authority as we did under Bush,” Arend said.
And White House officials say Obama is handling signing statements exactly as he promised he would as a candidate.
Responding to a 2007 candidate questionnaire from the Globe, Obama chided Bush, saying he had “attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions … and to raise implausible or dubious constitutional objections to the legislation.”
But Obama added: “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”
The New Year’s Eve signing statement “falls cleanly within the guidelines articulated by then-presidential candidate Obama four years ago,” White House deputy press secretary Josh Earnest said.
In March 2009, shortly after he took office, Obama issued a memorandum promising restraint, saying, “I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional.”
Still, by mid-2009 lawmakers already were complaining about some of his signing statements.
In a high-profile case, Obama signed a bill with more funding for the International Monetary Fund and the World Bank, but angered leading Democrats when his signing statement said he did not have to comply with some of the attached conditions.
In the December 31 statement on the bill authorizing defense programs, Obama bristled at the requirements for military custody as a rule instead of prison for suspected al Qaeda militants. He called them “ill-conceived” and said they would do nothing to improve U.S. security.
Supporters say the requirements merely codify what has been the practice for some years.
Obama suggested he was only signing the measure because it included a presidential waiver, saying this would allow the administration to continue being “relentlessly practical” in its handling of al Qaeda suspects. He declared his administration would not authorize the indefinite military detention without trial of American citizens.
Obama objected to restrictions on his authority to transfer detainees to a foreign country, and said, “My administration will interpret them to avoid the constitutional conflict.”
Reuters first reported last month that the Obama administration is considering transferring to Afghan custody Taliban prisoners held at the Guantanamo Bay detention center [ID:nL1E7Ns15Z].
Obama’s problems with the defense bill weren’t limited to detainees. He said he would interpret rules about sharing classified information with Russia in a way that does not limit his ability to conduct foreign affairs.
And he said that if new sanctions targeting Iran end up conflicting with his constitutional authorities, “I will treat the provisions as non-binding.”
Senator Carl Levin, a Democrat who was a co-sponsor of the new law’s provisions on detainees, said Congress intended for the law to be flexible.
“One of the goals of this long-overdue law on detainee policy was to give the executive branch adequate flexibility in its implementation, and I am glad that we succeeded. The president’s stated intention to use the flexibility Congress has given him is consistent with the statute,” Levin said in a statement e-mailed to Reuters.
Arend of Georgetown University said he felt the current angry political climate in Washington to some extent had created a situation where Obama was issuing more pointed, less diplomatic, signing statements.
“My sense is that Congress is becoming more and more intrusive on the president’s constitutional powers. And so to some degree, that is pushing the president in the position to challenge this. So I don’t know if he’s becoming more like Bush, or if Congress is becoming more intransigent. It’s probably a little bit of both,” Arend said.