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Obama and the use of Signing Statements

The New York Times reports today that the use of Presidential Signing Statements is once again causing consternation in Congress. The Times explains:

In the presidential campaign, Mr. Obama called Mr. Bush’s use of signing statements an “abuse,” and said he would issue them with greater restraint. The Obama administration says the signing statements the president has signed so far, challenging portions of five bills, have been based on mainstream interpretations of the Constitution and echo reservations routinely expressed by presidents of both parties.

Still, since taking office, Mr. Obama has relaxed his criteria for what kinds of signing statements are appropriate. And last month several leading Democrats — including Representatives Barney Frank of Massachusetts and David R. Obey of Wisconsin — sent a letterto Mr. Obama complaining about one of his signing statements.

“During the previous administration, all of us were critical of the president’s assertion that he could pick and choose which aspects of Congressional statutes he was required to enforce,” they wrote. “We were therefore chagrined to see you appear to express a similar attitude.”

They were reacting to a statement Mr. Obama issued after signing a bill that expanded assistance to the International Monetary Fund and the World Bank while requiring the administration to pressure the organizations to adopt certain policies. Mr. Obama said he could disregard the negotiation instructions under his power to conduct foreign relations.

The administration protested that it planned to carry out the provisions anyway and that its statement merely expressed a general principle. But Congress was not mollified. On July 9, in a bipartisan rebuke, the House of Representatives voted 429 to 2 to ban officials from using federal money to disobey the restrictions. And in their July 21 letter, Mr. Frank and Mr. Obey — the chairmen of the Financial Services Committee and the Appropriations Committee — asked Mr. Obama to stop issuing such signing statements, warning that Congress might not approve more money for the banking organizations unless he agreed.

In March, Senator Charles E. Grassley, Republican of Iowa, sent Mr. Obama a letter criticizing a signing statement that challenged a statute protecting government whistle-blowers who tell lawmakers privileged or “otherwise confidential” information. He accused Mr. Obama of chilling potential whistle-blowers, undermining the intent of Congress in a way that violated his campaign promises. The White House said it intended only to reaffirm similar reservations made by previous presidents.

Other laws Mr. Obama has said he need not obey as written include format requirements for budget requests, limits on whom he may appoint to a commission, and a restriction on putting troops under United Nations command.

After Mr. Bush transformed signing statements from an obscure tool into a commonplace term, Mr. Obama’s willingness to use them has disappointed some who had hoped he would roll back the practice, not entrench it.

“We didn’t think it was an appropriate practice when President Bush was doing it, and our policy is such that we don’t think it is an appropriate practice when President Obama is doing it,” said H. Thomas Wells, who just stepped down as president of the American Bar Association.

In 2006, the association called the practice unconstitutional and said presidents should veto legislation if it had flaws, giving Congress a chance to override the pronouncements.

But other legal experts argued that signing statements were lawful and appropriate because it was impractical to veto important bills over small problems. Among them, Walter Dellinger, who helped develop the legal framework for signing statements as a Clinton administration official, said Mr. Obama was using the mechanism appropriately, and the problem with Mr. Bush’s statements was that he cited dubious legal theories.

“The fact that a previous or subsequent president might refuse to comply with laws that are valid is not a reason for this president to decline to assert his authority with regard to laws that are invalid,” Mr. Dellinger said.

Mr. Dellinger signed a 2006 essay defending signing statements with other former Clinton officials, including David Barron and Martin Lederman, who now run the Justice Department’s Office of Legal Counsel. They work with White House lawyers Daniel Meltzer and Trevor Morrison, along with Office of Management and Budget officials, to produce Mr. Obama’s statements.

Since the 19th century, presidents have occasionally signed bills while calling a provision unconstitutional. But the practice was rare until President Ronald Reagan. He and his successors, including Bill Clinton, began issuing signing statements much more frequently and challenging far more provisions.

The practice peaked under Mr. Bush, who challenged nearly 1,200 provisions of bills over eight years — about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a Miami University of Ohio professor.

Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions. He also challenged, without listing them, “numerous provisions” in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.

In the presidential campaign, the Republican nominee, Senator John McCain of Arizona, promised never to issue a signing statement. By contrast, Mr. Obama said it was a legitimate way “to protect a president’s constitutional prerogatives” when used with greater restraint than Mr. Bush.

“Restraint,” Mr. Obama and his campaign said then, included not issuing “signing statements that undermine the legislative intent” or “nullify or undermine Congressional instructions as enacted into law.”

But in March, when he issued a presidential memorandum on signing statements, Mr. Obama defined restraint as citing only “interpretations of the Constitution that are well founded,” a subtle shift that provides greater leeway.

Still, unlike Mr. Bush, Mr. Obama has not mentioned the Unitary Executive Theory, an expansive view of executive power that conflicts with Supreme Court precedent. His only invocation of his commander-in-chief authority was limited, taking aim at a requirement that he get permission from a military subordinate before taking an action.

“He has not pushed the envelope as far as the Bush administration in making the kind of claims that Bush made,” said Phillip Cooper, a Portland State University professor who studies signing statements. “But he is still using it in ways that were controversial before George W. Bush came to office.”

Signing statements continue to trouble me.  My gut reaction is that it is permissible to issue a signing statement for purposes of providing the President’s view on the interpretation of a bill. This statement then becomes an important part of the legislative history that will inform both the implementation and adjudication of the statute. But if signing statements are being used to exclude or modify portions of legislation, I believe there is a serious problem.

Legislation by its very nature is a compromise. Not every member of Congress will be happy with every portion of every bill, nor will the President. But if the Member decides to vote for the bill and if the President decides to sign it, they are agreeing to be bound by it as a matter of law. If the President objects to certain provisions, he or she always has the option of vetoing the legislation. If the President decides not to veto, he or she is agree to live with the law.

Now I recognize that in many cases in the past, the President issued a signing statement because he believes that provisions of the bill are unconstitutional. But if the President really believes that the legislation contains provisions that are unconstitutional, isn’t the President under a constitutional obligation to veto the bill? After all, the President swears to “preserve, protect and defend the Constitution of the United States.”

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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.