With the Obama Administration in Month Three, discerning the new President’s views of executive power is still largely a matter of reading tea leaves. A few of the more intriguing leaves have, of course, been the President’s memorandum on signing statements and, in short order, his own first two signing statements, here and here.
I entirely agree with Neil Kinkopf that there is no real kinship between the theories of executive power expressed in President Obama’s first two signing statements and the extreme claims to executive authority made hundreds and hundreds of times by George W. Bush. But, with all respect for my beloved co-chronicler of signing statements, I think it is OK to be concerned already that the Obama Administration is not yet “getting it” on this subject.
The routine use of signing statements to note each President’s constitutional views and vague interpretive intentions is, quite simply, an awful idea. There is much glossed over in the following statement from the Obama Memorandum: “For nearly two centuries, Presidents have issued statements addressing constitutional or other legal questions upon signing bills into law (signing statements).”
A more accurate two sentences would be these: “From the Monroe through the Carter Administrations, Presidents on exceedingly rare occasions issued statements addressing constitutional or other legal questions upon signing bills into law (signing statements). From the Reagan Administration forward – and most especially during the Bush 43 Administration – the practice has exploded, chiefly as right-wing Presidents have tried to establish a phony co-equal role with Congress in the making of law, and discipline the executive branch into following radically aggressive theories of executive power.” That’s the river of recent history into which the Obama Administration is wading.
Seen in this light, President Obama’s early indulgence in signing statements is four ways troublesome. First, should the practice become regular, it would continue to suggest – quite wrongly – that signing statements are appropriate occasions for the routine elaboration of separation of powers law. They are not. They threaten to become a burgeoning and largely unmanageable mass of obscure, politicized and conclusory quasi-legal objections to legislation that are devoid of legal reasoning or precedential value. Except in truly rare instances, when the executive branch wants to elaborate on its view of separation of powers law, it should do so through formal interpretive processes – opinions of the Attorney General or of the Office of Legal Counsel. These should be carefully reasoned, cognizant of precedent and competing arguments, and readily searchable.
Second, they are operationally (but not psychologically) pointless. With regard to the whistleblower protection provisions of the Omnibus Appropriations Act of 2009, for example, President Obama wrote: “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.” Absent an actual controversy regarding a particular whistleblower, it is hard to see what this statement accomplishes. Surely, Congress is aware that the executive branch believes in executive privilege, that there are certain facts in the executive’s possession, disclosure of which is a felony, and so on. If a whistleblowing episode involves an unlawful communication, then the executive branch will actually have to confront its arguably conflicting responsibilities under the appropriations act and other statutes (or the Constitution). Until that case arises, however, the President’s statement seems largely superfluous.
Third, if we assume that President Obama’s signing statements are somehow intended to affect administrative action, they will raise an obvious question when read in conjunction with President Obama’s March 9, directive. His March 9 memorandum instructed agencies to consult with the Attorney General before acting on the basis of his predecessors’ signing statements. Does the President now intend that agencies act upon his signing statements without having to consult the Attorney General? And, if President Obama has a Republican successor, might that President issue his own order directing agencies to treat President Bush’s statements, as well as his own, as authoritative, but not to implement President Obama’s without consultation? The spectre of legal pronouncements whose impact presumptively alters with every change in the party identification of the incumbent President is inimical to the rule of law ideal. Yet, it’s easy enough to see the executive inadvertently heading down that path.
But, finally, and most important, the proliferation of signing statements has been part and parcel of a dangerous move in the organizational psychology of the executive branch. Routine signing statement reservations too easily come to embody a kind of unchecked institutional ambition that feeds on itself. It’s too early to sound this alarm for President Obama’s statements; they have not been especially controversial and so far implicate only two statutes. But the new Administration should recognize that presidential signing statements as a routine practice can come to both reflect and encourage a psychology of constitutional entitlement within the executive branch that is very troubling, no matter who is in power.
The signing statements of the Bush 43 Administration functioned, if anything, as a form of discipline within the executive branch. They served as reminders to Administration members, and especially to Administration lawyers, of how the President wanted the Administration to behave: claim maximum power, concede minimum authority to the other branches. There is thus a direct link between signing statements and the dangerously irresponsible “lawyering” that attended the Bush Administration’s handling of Guantanamo and warrantless wiretapping.
President Obama’s signing statements have not embraced the more audacious claims of executive power that the Bush Administration made routine. Over time, however, the repeated utterance of presidential immunity to both important and obscure forms of congressional regulation cannot help but shape executive branch behavior by inducing allegiance to norms of resistance to external accountability. Unless confined to relatively rare instances where Presidents are standing up for bedrock, well-established principles of executive authority, signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and too often a disregard for the necessity to ground legal claims in plausible law. I hope President Obama will issue them very, very rarely.
I elaborate these views further in Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press 2009).
Tags: Signing Statements