President Obama’s Signing Statements and Congress’ Response: A Return to Separation of Powers Sanity?

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Among the more audacious displays of George W. Bush fantasies of executive power was the explosion in his use of presidential “signing statements” to interpose constitutional objections to congressional bills that he was actually signing into law.

Between 1789 and 1981, our first 39 presidents found a total of 101 provisions of 92 separate statutes worthy of this particular form of complaint. Bush, in just his first six years of office, objected to around 1000 statutory provisions, many on multiple grounds. Either the Republican-dominated Congress went haywire in trying to curtail the prerogatives of this particular Republican President – a pretty unlikely hypothesis – or other motives were afoot.

In his first six months in office, President Obama has also issued a fistful of these signing statements – five to be exact. They actually raise nine different constitutional objections, although the number of statutory provisions affected goes somewhat beyond that. In one such statement, for example, the President observes: “Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees.” Such provisions are plainly unconstitutional after Immigration and Naturalization Service v. Chadha.

Some Obama critics or Bush defenders have been quick to say that the Obama signing statements duplicate the Bush Administration’s practices. But there are three hugely interesting things to note about the Obama statements, which suggest we are not seeing Bush 43 redux:

The first is that only two of President Obama’s nine objections are at all unconventional from an executive branch point of view, and both appeared in his very first signing statement, which came in connection with the Omnibus Appropriations Act, 2009. One wonders if the objections were drafted by holdover attorneys from the Bush Administration.

The less consequential of the two objects to a statutory requirement the President and other executive officers submit budget requests to Congress in particular forms. According to the President: “Because the Constitution gives the President the discretion to recommend only ‘such Measures as he shall judge necessary and expedient’ (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.”

This statement is a pure non sequitur. Requiring the President to submit budget requests in a particular form does not interfere with his constitutional prerogatives. He is not required to make recommendations he thinks unnecessary or not expedient. Indeed, he can provide budgetary information in the form requested, accompanied by a statement that explains to Congress exactly what he does think is necessary and expedient, structured in whatever budgetary format he prefers.

The second unusual objection was uttered in response to Congress’s prohibition on the use of federal funds to pay the salary of any federal employee who “interferes with or prohibits” a federal whistle blower’s communications with Congress. The President responded: “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.”

The President’s objection is stated in somewhat opaque lawyerly prose. The statement is unproblematic if interpreted to mean that the executive branch can fire whistle blowers who share information with Congress in violation of law. The President, after all, is constitutionally obligated to take care that the laws be faithfully executed.

The signing statement can be read, however, to suggest that the executive branch may discipline whistle blowers if they share information that is in any sense confidential even when sharing that information is within the law and the information is not properly subject to privilege. It is not at all clear the President has any such power.

Not surprisingly, the President’s utterance of these objections – especially the latter – drew a good deal of criticism. But, as I said, none of the objections he has made since his first statement resembles these two. All seem to comport with his promise, in regard to signing statements, to “act with caution and restraint, based only on interpretations of the Constitution that are well-founded.” This is quite distinct from the Bush 43 record, which included well over five hundred fanciful objections based on unitary executive theory or alleged violations of the President’s recommendation power – objections cut from constitutional whole cloth.

The second notable fact is that the volume of President Obama’s objections, while outpacing Presidents Monroe through Carter, seems entirely in line with Presidents Reagan and Clinton.

If President Obama continues to object to about five statutes on a semi-annual basis, he will find himself writing about 40 signing statements of protest during his first term and another 40 in his second. There have been divergent counts of the number of signing statements by recent presidents that ought to count as statements of objection, but one count puts the number of such Reagan statements at 86 and Clinton at 70. (George H.W. Bush topped both of these totals in a single term.)

The Reagan Administration, it is true, marked a distinct departure in signing statement practice from the nearly two centuries prior. A President whose Administration’s legal thinkers were deeply committed to a new theory of the unitary presidency, facing a Congress dominated by the opposition party, undoubtedly found it attractive to use signing statements in a newly aggressive way to help stake out a wider territory for the exercise of his unilateral discretion. Unlike President George W. Bush, however, Reagan may have been less interested in fabricating new and untested theories of executive power, than in reminding Congress more than did his predecessors of potential separation of powers transgressions, even if they were likely of no practical consequence.

If we now regard the Reagan/Clinton pattern as “the new normal,” then the Obama pattern ought to be viewed not as a return to Bush 43 (or even Bush 41), but a return to the Reagan/Clinton pattern.

My personal view is that “the new normal” is itself unjustified – I have argued elsewhere that the proliferation of signing statements are legally destabilizing, operationally pointless, and a dangerous move in the development of the organizational psychology of the executive branch. But matters of degree do matter, and here it is: On signing statements, the Bush Administration has made me nostalgic for Reagan.

The third and perhaps most notable new fact is that Congress has awakened to its own authorities.

President Obama wrote, in signing the Supplemental Appropriations Act, 2009: “[P]rovisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions.”

Specifically, these provisions implement Congress’s apparent desire to move international economic institutions to which we contribute funding towards labor standards that recognize workers’ rights and environmental standards that look for significant action on climate change. The Supplemental Appropriations Act directs the Secretary of the Treasury, either himself or through the U.S. executive directors of such banks, to “actively promote and work to achieve,” “seek to ensure,” “continue to promote,” and “work to ensure” such goals. Congress likewise required progress reports on such efforts, as well as efforts taken to coordinate, and avoid duplication of mission between, the World Bank and the International Monetary Fund.

The Supplemental Appropriations Act also directs the Secretary and the U.S. executive director of the IMF to oppose financial assistance to governments that support international terrorism or that imposes, as a condition for such assistance, budget caps for governments of poor countries that require limits on spending for education, health, food, or other forms of social safety net support.

As a constitutional matter, it is not surprising that a President would regard such provisions as unduly intrusive into his prerogatives. He might even be tempted to object in writing, although the labor and environmental provisions would seem to leave the executive very substantial discretion, and it is not clear that the purported limits on U.S. discretion to support or oppose financial assistance to other countries are at all at odds with Obama Administration policy.

But the House of Representatives has done something interesting. In response to the Obama signing statement, the House amended the FY2010 appropriations for the State Department and other foreign operations to reassert its own prerogatives. That bill, as sent to the Senate, currently provides: “None of the funds made available in this Act may be used by the Secretary of the Treasury to negotiate an agreement in contravention of” the provisions of law to which President Obama objected. In other words, “President Obama, you may object to our dictating negotiating terms to the Secretary of the Treasury, but we refuse to pay his salary to negotiate on any other terms.”

As between the two branches’ positions, I think the President may have the stronger technical argument. But I also think congressional push-back on behalf of its legislative authority is healthy. Had Congress stood up to President Bush’s hundreds and hundreds of fanciful power claims, perhaps we would actually have seen fewer of them.

In a system of checks and balances, it is appropriate and important to see Congress standing up for its own constitutional views. Why Democratic Congresses are more vigilant against Democratic Presidents than Republicans were vis-a-vis Bush is an intriguing historical question – especially when Obama’s popularity is so much greater. For fans of democracy, however, this is good news. A President trimming the volume of signing statements and Congress standing up for the prerogatives of the legislative branch – that sounds like a possible return to separation of powers sanity.

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2 Responses to “President Obama’s Signing Statements and Congress’ Response: A Return to Separation of Powers Sanity?”

  1. Peter M. Shane: President Obama’s Signing Statements and Congress’s Response: A Return to Separation of Powers Sanity? » A Couple Things » A couple things about politics, sports, travel, and other stuff. Says:

    [...] For readers who can wade through 1600 words of explication of these theses, I have laid out my detailed analysis here. [...]

  2. Peter M. Shane: President Obama’s Signing Statements and Congress’s Response: A Return to Separation of Powers Sanity? | BlackNewsTribune.com Says:

    [...] For readers who can wade through 1600 words of explication of these theses, I have laid out my detailed analysis here. [...]

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