Posts Tagged ‘presidential power’

Signing Statements Redux

March 17, 2009

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…)