I have been surfing the web a bit to gauge the reaction to the statement that President Obama issued last week when he signed the appropriations bill. Commentators on both the left and the right have been critical of the statement. The criticism can be summed up in the words of the noted constitutional scholars, The Who: “Meet the new boss/Same as the old boss.” In other words, Obama’s signing statement is essentially the same as the signing statements issued by President Bush. (Representative samples can be found at TPM, The Daily Beast, Talk Left, Newshoggers, Salon, and the Volokh Conspiracy.) This broad criticism comes in two flavors. The first asserts that all signing statements are improper and threaten the separation of powers. The second claims that the content of Obama’s signing statement is at best difficult to distinguish from the content of the Bush signing statements, which is to equate, roughly, Obama’s theory of executive power with Bush’s. Each of these criticisms is misguided.
First a note on terminology: the “signing statements” I mean to discuss in this post are only those that include a claim that one or more provision(s) of the bill being signed into law is/are unconstitutional. The claim that all signing statements pose a similar threat to the proper allocation of government power misses the mark. Last week, Obama issued a presidential memorandum on signing statements in which he promised that he would only make a constitutional objection if the objection is well-founded (that is, is well supported by precedent) and after having notified Congress of the constitutional infirmity. This approach will largely assure that Obama will not use signing statements as a sort of line-item veto, refusing to enforce provisions of law that he disapproves of. Rather, by limiting statements to those that find ample support in precedent, Obama can only issue an objection to provisions where the provision would properly be declared unconstitutional in court. This eliminates the discretion in raising constitutional objections and so renders the signing statement ineffective as a vehicle for aggrandizing presidential power. Moreover, the commitment to notify Congress in advance of the President’s constitutional objection demonstrates respect for the constitutional role of Congress to consider the constitutionality of the statutes it enacts. (The commitment to raise only well-founded objections similarly indicates respect for the role of the courts in resolving contested issues of constitutional law, because it means that Obama will only make an objection where judicial precedent supports it.)
Contrast with this the Bush approach, which made frequent constitutional objections that could find no discernible support in judicial precedents. Moreover, Bush’s signing statements by their own terms demonstrated contempt for the power and constitutional roles of Congress and the judiciary. Consider the statement issued when President Bush signed the McCain Amendment (which prohibited cruel, inhuman, or degrading treatment of detainees): “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power ….”
By way of example, consider this criticism: Elana Schor at TPM disapproved of the Obama statement’s objection to several legislative vetoes. After a reader alerted her to the Supreme Court’s decision in INS v. Chadha, she added: “Late Update: A reader writes in to observe that the administration’s signing statement has constitutional precedent to back it up. I’m in no way suggesting that it doesn’t — merely pointing out that while Obama attempts to undo Bush’s past statements, he’s clearly reserving the right to defend executive power when he sees fit.” But the President is not reserving the right to act “as he sees fit.” The Constitution, as definitively construed, makes such provisions illegal. President Obama is not acting to assert authority or discretion. He is obeying the Constitution. Should he enforce the legislative veto, which everyone (Congress included) knows to be unconstitutional and as to which there is no basis to believe the Supreme Court would reverse its precedent?
This rejoinder applies equally to Glenn Greenwald’s critique at Salon: “The broad powers Obama asserted for himself in that signing statement are clearly at odds with the pretty-worded policy he issued days earlier whereby he ‘promised to take a modest approach when using the statements’; to use them only to challenge provisions he notified Congress in advance he believes are unconstitutional; and to issue them ‘based only on interpretations of the Constitution that are well-founded.’”
The real issue in the now long-running debate about signing statements has never been whether there is a time and a place for such statements. Longstanding presidential practice has settled that point. (Two days ago, I took issue with a post Eric Posner wrote on the Volokh Conspiracy about signing statements, but we are in agreement on this point.) Rather, the real issue is the theory of presidential power that supplies the substance of the signing statements. The reason the Bush signing statements were so problematic was that they were based on a radical conception of presidential power. (This is the point on which Posner and I disagree.) The statement that President Obama issued last week keeps the commitment set forth in the memo he had issued just two days before. Each of the objections raised in the statement is well-founded and has been raised by Presidents of both parties for decades.
In a post on Talk Left titled, “The problem with President Obama’s Signing Statement” Big Tent Democrat criticizes the component of the statement that objects to a provision requiring the Secretary of the Treasury to comply with direction from a Board of Directors that includes members of Congress, evidently because there is no Supreme Court precedent directly on point. There is, however, precedent that is not obviously distinguishable – MWAA v. Citizens for the Abatement of Aircraft Noise. Moreover, the DC Circuit held that the FEC was unconstitutionally composed because it included two representatives of Congress, even though these representatives were non-voting members of the commission (the Supreme Court affirmed on jurisdictional grounds). Whatever else one might say of this objection it is, as the Presidential Memorandum on signing statements promised, well-founded.
December 14, 2009 at 6:26 pm
Should courts afford any weight to Presidential signing statements when interpreting ambiguous statutes? It is curious that judges and academics are amenable to examining myriad legislative documents to determine a statute’s intent and purpose, but there is reluctance to acknowledge signing statements.
For proponents of examining legislative history, it is generally acceptable to examine committee reports, sub-committee reports, floor debates, hearings, and numerous other documents not developed by Congress (such as appropriations requests). Why should we not add signing statements to the mix? After all, the Constitutional does mandate two parts to passing legislation — bicameralism and presentment. It is incongruent to afford any weight at all to a statement developed by a congressional staffer, inserted into a Committee Print, while not considering a statement from the person bound to uphold the constitutionality of every law that is presented to him. It simply appears that in the (rightly) acknowledged weight that courts afford to the legislative branch when determining a statute’s purpose (the bicameralism requirement), courts should not ignore the presentment requirement. Any student of American Government 101 can explain why diagrams of shared powers in the American constitutional system show that legislative powers are not exclusively held by Congress. Why, then, would courts limit their inquiries about statutory purpose only to Congress?
December 16, 2009 at 8:34 pm
Is there another purpose for the signing statement beyond as an interpretive tool, or marking executive power? I think so. It gives society notice — for better or worse — concerning how the executive will execute a particular law. Unlike the committee reports (that apparently no one reads), society (congress, academics, voters, the world) is very interested in what the president says. Notice is important.
Would it be better if there were no signing statements and the executive simply enforced certain provisions but not others? Does the executive power grow more from signing statements than from executive action (or inaction)? Will the signing statement insulate the executive from court action? Will it play a significant role in how courts interpret the law? Most likely not.
But will people read it? I would hope so, and that is a good thing.