Archive for the ‘Signing Statements’ Category

Keeping Signing Statements Rare

April 7, 2009

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.

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Executive Power and the 80% Problem

March 24, 2009

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…)

Symbols and Substance in the New Administration

March 23, 2009

This post was written by Curtis A. Bradley & Eric A. Posner

Now that the critics of the Bush administration’s theories of executive power hold office in the Obama administration, one might have expected a U-turn in the executive’s position on the law.  But rather than repudiating Bush’s theories of executive power, the Obama administration has embraced them in substance.  At the same time, it has used symbolic gestures and changes in labeling to mask the continuity.

President Obama announced that he would close Guantanamo but not that he would close other detention centers around the world, such as those in Iraq and Afghanistan.  In doing so, he followed a political consensus, shared by Bush and McCain, that Guantanamo had become a public relations problem.  Shortly after making the announcement about Guantanamo, the Obama administration endorsed the Bush administration’s argument that U.S. courts cannot review a similar detention facility at the Bagram Air Base in Afghanistan that is governed by less formalized processes and currently houses substantially more prisoners.

Meanwhile, the Obama administration has also escalated the military campaign in Afghanistan and Pakistan, including the use of Predator drone attacks, a course of action that will mean that more Taliban and Al Qaeda members will be killed rather than detained.  This is one way to solve the problem of detention, but it hardly signifies a radical change of principle.

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Obama on Transparency and Scientific Integrity: Some Positive Signs with Some Mixed Signals

March 13, 2009

One kind of issue about presidential control over executive government with proven implications for “science-bending” concerns presidential control over executive branch communications with Congress. Transparency, and all the contributions to “honest brokering” and effective democracy through the “marketplace of ideas” that go with it, is impaired if the President takes the position that communications with Congress or the public must be pre-cleared politically. One notorious example during the Bush administration was the suppression of projections concerning the cost of certain health-care measures. Some such controls are of long-standing, however. Thirty-two years ago, when the author was General Counsel of the US Nuclear Regulatory Commission, the Office of Management and Budget was “coordinating” (i.e., pre-clearing) communications and testimony to Congress about legislative proposals and budgetary matters. The Commission’s nominal independence (it was of course an element of the executive branch, but its statutes provided explicitly for direct communication) softened these controls; but within the Commission itself, its Bureau “executives” sometimes exercised rather rigorous control over what they would permit their staff members to tell the Commission about perceived nuclear power risks – a rather unfortunate situation. (more…)

Obama’s Policy on Signing Statements

March 9, 2009

Today, President Obama issued a Memorandum to Heads of Executive Departments and Agencies on the use of signing statements in his administration.  So far as we can tell, no prior administration has ever issued a formal policy regarding signing statements.  Plainly, this one has been prompted by the extravagant use of these statements by President Bush:  during his first six and a half years, President Bush used signing statements to object to at least 1069 provisions of laws Congress had just enacted, compared to 105 objections by President Clinton.  (These figures are from a paper by Neil Kinkopf and Peter Shane.  I cannot find a compilation of Bush signing statements for Bush’s last year and a half. ) The point of President Obama’s memorandum is to indicate a break from the past. (more…)