Signing Statements Redux

By nkinkopf

Last week, President Obama issued his first signing statement. Actually, it wasn’t his first signing statement, but it was the first statement in which he expressed his view that certain provisions of the bill he was signing were unconstitutional. The Bush Administration was subject to a good deal of criticism for its use of signing statements. So, perhaps it is not surprising that some have taken the occasion as an opportunity to settle scores. Here is what Eric Posner had to say on the Volokh Conspiracy:

The … signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don’t care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president’s commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a “news” article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage’s walking-on-eggshells report on the Obama statement.)
The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush’s views on presidential power in the end were all that different from Clinton’s or, if they were, whether the differences would have had practical importance.

Let’s take the claims in order. First, the claim that “signing statements have almost zero practical effect” is highly dubious. The GAO conducted a review of 19 constitutional objections contained in President Bush’s signing statements regarding 2006 appropriations acts. The study found that “10 provisions were executed as written, 6 were not, and 3 were not triggered and so there was no agency action to examine.” I wouldn’t want to overstate the significance of this report, but it does demonstrate that agencies do in fact rely on signing statements in enforcing federal law. I don’t see how one could consider this “zero practical effect.” Posner’s claim that courts do not rely on signing statements is descriptively accurate at present. But that could change. When he was on the D.C. Circuit, John Roberts indicated sympathy for the view that the judiciary should extend Chevron deference to the President’s legal interpretations. Acree v. Republic of Iraq, 370 F.3d 41, 63 n.2 (D.C. Cir. 2005)(Roberts, J. concurring). Were the Supreme Court to accept this view, Posner’s description of the status of signing statements would no longer be accurate.

The real howler in Posner’s post is the claim that the Bush Administration’s “views about presidential power were formally the same as its predecessors—and those of its successor, apparently.” Later, he softens this line a bit, asserting that “[i]t remains unclear whether Bush’s views on presidential power in the end were all that different from Clinton’s ….” Put either way, however, the assertion is unsupported. In fact, the Clinton Administration’s views on presidential power were dramatically different than those of the Reagan, Bush I, or Bush II Administrations. During the Clinton Administration, the Office of Legal Counsel issued an opinion, known as the Dellinger Memo, setting forth a comprehensive view of separation of powers in the domestic sphere. That memo fully embraced not only holding, but the analytical approach of Morrison v. Olson. The Reagan and two Bush Administrations regarded that opinion as heresy. Several opinions of those administrations treated it as a narrow holding that had little effect outside its peculiar facts, because accepting its reasoning would repudiate their various models of the unitary executive theory. As for the Obama Administration, nothing in last week’s signing statement indicates what its view of presidential power might be. The objections in that statement were all fairly routine objections that could be made under either theory of presidential power. This is not to say that there is no practical difference between them. Take the objection to the rider that forbids the use of funds to place U.S. troops under U.N. command unless the President first receives a recommendation to do so from a subordinate military officer. This provision offends any credible theory of the commander-in-chief power that I am aware of. It does not follow from this that all theories of the commander-in-chief power are practically the same. President Bush once issued a signing statement claiming that a statute limiting the number of both civilian and military personnel in the Defense Department’s legislative affairs office was inconsistent with the President’s authority as commander in chief. Nothing in President Obama’s signing statement indicates that he would agree with this preposterous view of the commander-in-chief power.

Finally, I do not understand Posner’s beef with Charlie Savage’s reporting on signing statements. I am one of the former Clinton Administration lawyers who, like Posner, believes that the real issue in the signing statement debate is not whether it is appropriate to use them (like Posner, I think it is), but the substance of the statements themselves. The American Bar Association took a contrary position. Savage’s news article (why the quotes?) fairly reports this disagreement. I don’t see how Savage paints me as rear-end-covering. Although there is a quote from an ABA commission member more or less to that effect, this is not the reporter’s own statement. I don’t see any basis for regarding Savage as having painted Posner or anyone else as a “right-wing lunatic.” For my part, I’d say anyone who can make arcane aspects of separation of powers interesting is more than deserving of a Pulitzer Prize.

The signing statement that President Obama issued last week contains no basis at all for concluding that Obama Administration has adopted essentially the same theory of presidential power that the Bush Administration held. In fact, we do not yet know what the Obama Administration’s theory of presidential power is. It will be worth watching signing statements and the opinions of the Office of Legal Counsel to learn what this theory is. At that point, it will be profitable to discuss and debate the merits of its theory.

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