Last week, President Obama issued his first signing statement. Actually, it wasn’t his first signing statement, but it was the first statement in which he expressed his view that certain provisions of the bill he was signing were unconstitutional. The Bush Administration was subject to a good deal of criticism for its use of signing statements. So, perhaps it is not surprising that some have taken the occasion as an opportunity to settle scores. Here is what Eric Posner had to say on the Volokh Conspiracy:
The … signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don’t care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president’s commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a “news” article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage’s walking-on-eggshells report on the Obama statement.)
The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush’s views on presidential power in the end were all that different from Clinton’s or, if they were, whether the differences would have had practical importance.
Let’s take the claims in order. First, the claim that “signing statements have almost zero practical effect” is highly dubious. (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:
(more…)
Tags:checks and balances, george w. bush, obama, Signing Statements
Posted in Commentary, Executive Branch Power, Executive Watch, Signing Statements | 2 Comments »