People are intensely interested in figuring out how President Obama’s view of his presidential authority differs from President George W Bush’s, and rightly so. Some of the legal underpinnings for many of the Bush administration’s most controversial policies – the initial creation of military commissions, the resistance to providing judicial review for detainees held at Guantanamo, the use of aggressive interrogation techniques, the NSA’s warrantless surveillance program – relied on a theory of presidential authority that many thought arrogated too much unilateral power to the presidency. And of course candidate Obama campaigned against these programs and the legal theory of the presidency that supported them. A much-noted Q&A with Charlie Savage in the Boston Globe back in December, 2007 summarizes candidate Obama’s views.
Two months into his term, President Obama has taken steps to revise or reverse all of these policies. He has announced the cessation of military commission trials. He has announced the closing of Guantanamo, after a planning and evaluation process to determine which cases can be transferred to the federal courts or to military courts martial. He has announced that the Army Field Manual defines the permissible interrogation techniques for American personnel. And we believe, but do not know, that warrantless surveillance of Americans within the United States is no longer occurring, subsequent to Congress amending the FISA statute to authorize a program that meets national security requirements while subjecting the procedures for that program to judicial review by the FISA court. Led by Vice President Cheney, conservative critics claim that these policy changes are making the country weaker and less secure.
Despite these noticeable and notable changes, somewhat remarkable narrative is gathering momentum: On issues of presidential power, Obama is not much different from Bush. Making the narrative even more interesting, it is coming from the left and the right. (more…)
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President Obama’s Signing Statements and Congress’ Response: A Return to Separation of Powers Sanity?
July 21, 2009Among 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:
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Tags:checks and balances, george w. bush, obama, Signing Statements
Posted in Commentary, Executive Branch Power, Executive Watch, Signing Statements | 2 Comments »