Obama on the Dangers of Presidential Signing Statements: Trust Me!

In December 2007, the Boston Globe quizzed all of the major party presidential candidates about issues of executive authority. One question dealt with presidential signing statements, which George W. Bush had used to nullify portions of numerous federal laws—laws that he had just signed—that he believed undermined his executive powers. Not that it mattered to voters, but John McCain gave one of the best answers: "As President, I won't have signing statements. I will either sign or veto any legislation that comes across my desk." Barack Obama proved more evasive. While he declared that it was "a clear abuse of power to use such statements as a license to evade laws that the president does not like," he also claimed, "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives." No one?  Besides, Bush's whole point was to protect the "president's constitutional powers," at least as he defined them.

So what's to stop President Obama from doing much the same? We shall see. According to ABC News, Obama will definitely be using signing statements:

"I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities," he wrote, without providing specific details on what would fall under that definition….

""[S]uch signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress," Obama wrote.

More here. My case against presidential signing statements here.

Comments

[Taktix?]

I knew there was a reason we didn't elect a black guy for 230 years...

(/racist bastard)

[Apologies for More Off Topic]

Is Cass Sunstein the most dangerous man in America?

Forget steaks, hamburgers, hotdogs, lamb chops, pork, chicken, quail, venison. Wipe out the Oklahoma cattle industry, the pig industry, the poultry industry, the hunting industry. Eliminate horse racing. Radical thoughts, you ask? Not so to this Barack Obama confidant, whose animal rights views would overturn all of human history and destroy the world economy.

[Jerry]

If a law goes against the constitutional prerogatives of his office, shouldn't he just veto the bill?

[TofuSushi]

Signing statements are not bad when the right person is signing.

[Johnny Nowhere]

Yes, McCain had one of the best answers. Paul's was more concise and therefore presents a better contrast to Obama's.

Why not throw a little love to Paul?

[Elemenope]

If a law goes against the constitutional prerogatives of his office, shouldn't he just veto the bill?

That's the first point that popped into my head.

[P Brooks]

a) ""[S]uch signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections.

b) Legislative review serves a legitimate function in our system, at least when based on well-founded constitutional objections.

c) Presidential vetos serve a legitimate function in our system, at least when based on well-founded constitutional objections.

d) Negotiations between the President and Congress serve a legitimate function in our system, at least when based on well-founded constitutional objections.

Which of these are incorrect?

[Taktix?]

Forget steaks, hamburgers, hotdogs, lamb chops, pork, chicken, quail, venison. Wipe out the Oklahoma cattle industry, the pig industry, the poultry industry, the hunting industry.

Highly doubtful, as starving people is not a great political tactic:

Deus Impeditio Esuritori Nullus

[Obushma]

I gots yo' "CHANGE" hangin' biotches!

[the innominate one]

again, this does not bode well

Jerry - exactly right

[TofuSushi]

Obviosly signing statements were good until Bush used them, unless you find James Monroe, Andrew Jackson, John Tyler, James K. Polk, and Ulysses Grant to be bad, then they just became good under Obama.

[prolefeed]

TofuSushi -- signing statements are bad, regardless of which president does them. Just veto the damn thing if it contains any unconstitutional provision whatsoever, in accordance with one's oath of office.

Which, BTW, would mean vetoing virtually everything Congress passes.

Refusing to enforce unconstitutional laws overriden by Congress would be the next step toward a better government, but hey, baby steps.

[moreofthesame]

What's good for the goose is good for the next goose.

Why give up such a powerful tool when you can just demonize the last guy and proclaim your use to be just and fair.

Lying shyster thieves, the whole lot of them. Making fun of, "Change and Hope" has gotten old, but I'll be damned if the administration doesn't offer a daily reminder of their ability to be hypocritical.

[Pro Libertate]

Presidential Signing Statement: "My God, this bill is totally unconstitutional!" [Takes out pen and signs.]

[TofuSushi]

I will bet Hitler used signing statements, just like Nixon.

[J sub D]

There is nothing, zero, zip point shit in the Constitution (formerly known as the law of the land) that indicates a signing statement has any fucking legal weight whatsoever.

I'm vetoing this bill because of Provision X, which I believe is unconstitutional.

If congress removes Provision X and returns it to me, I will sign it.

If congress overrides my veto, my Attorney General will take the matter to the Judiciary.

Is that so fucking hard?

[Paul]

"No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives."

Change.

Change.. change...chAnge...ChAnGe. ChangE. ChaNGE. CHANGE. CHANge. ChanGE...

[fyodor]

Signing statements are vile.

But do they really matter?

Can they protect the president in court if his actions are challenged there? I wouldn't think so.

And if a president is going to even ignore a court ruling, does it matter if he announces his intention to do so ahead of time?

Seems more like some sort of presidential neurosis than anything else. I mean this but I'm hedging my bets in case I need to contradict myself later? Whatever, dewd...

[Paul]

It's ok, everyone, Conyers says that all signing statements are bad. He's a'gonna fight Obama on this:

Conyers said the president has no power " to ignore duly enacted laws he has negotiated with Congress and signed." And he vowed to find out whether the administration has followed each law it challenged -- including laws touching on classified national security matters, such as the tactics used to interrogate suspected terrorists and the FBI's use of the Patriot Act.

"This is a constitutional issue that no self-respecting federal legislature should tolerate," Conyers said, and he added that the committee was determined to "get to the bottom of this matter, and to be blunt, we are not going to take no for an answer."

The Michigan Democrat made his remarks at the committee's first oversight hearing since Democrats took control of Congress, which Conyers devoted to signing statements. He called the hearing a kickoff to his plans to use the coming session to probe the administration's "growing abuse of power."

Democrats on the Judiciary Committee are beefing up their staff by hiring a special "oversight and investigative unit" of about six attorneys to lead the panel's probes of the administration. The group is headed by Elliot Minc- berg , formerly the general counsel of the liberal activist group People for the American Way.

[Stalin]

"starving people is not a great political tactic"

Worked great for me.

[Silentz]

A couple of the answers stated that they'd only use signing statements to clarify things that contradicted the Constitution. Since when is it the job of the Chief Executive to decide whether a provision 'went against the Constitution'? And since when did any of our Chief Executives have a clue as to what the Constitution actually says?

[Pro Libertate]

Presidents have the obligation to interpret and adhere to the Constitution, too. They can exercise that obligation through their veto power, but they should also refuse to do things they think are unconstitutional. Granted, Congress could impeach a president if it didn't agree, but there you are.

[Matthew Tievsky]

First of all, a "signing statement" is just a president's statement of his interpretation of the bill he's signing. It doesn't necessarily mean he interprets any of the bill to be unconstitutional.

Second, there's nothing INHERENTLY wrong with a president signing a bill yet declaring a part of it unconstitutional and thus void. Of course, he COULD veto the entire thing, but he's under no obligation to do so. His obligation is merely to not enforce unconstitutional "laws." If he signs the bill and ignores what's clearly unconstitutional, he's carrying out his duty to enforce the valid laws and he's behaving exactly the same as a federal court would--excising the unconstitutional portion as null and void while leaving the rest untouched.

Caveat: As a matter of prudence, I tend to think the president shouldn't do this when it's merely arguable that a portion of the bill is unconstitutional. That might arrogate too much power to the executive. The difficult cases of interpretation should be left to the courts, as much as possible.

[Paul]

Caveat: As a matter of prudence, I tend to think the president shouldn't do this when it's merely arguable that a portion of the bill is unconstitutional.

So you're saying the president shouldn't do this. Because you show me a constitutional issue-- including ones already settled by the courts-- and I'll show you an argument.

[R C Dean]

Second, there's nothing INHERENTLY wrong with a president signing a bill yet declaring a part of it unconstitutional and thus void.

Well, other than Supreme Court saying that he has to either sign or veto the bill as a whole, and can't pick and choose which parts to enact.

[Paul]

Hmm, correct me if I'm wrong. With 'signing statements', there's no such thing as "veto proof" legislation.

[Pro Libertate]

Signing a bill that was unconstitutional in part is a violation of a president's oath and an independent violation of the Constitution itself. Which is why signing a bill and saying you think some parts are unconstitutional is a pathetic dereliction of duty.

Of course, there's always the line-item veto.

[John Thacker]

Signing a bill that was unconstitutional in part is a violation of a president's oath and an independent violation of the Constitution itself. Which is why signing a bill and saying you think some parts are unconstitutional is a pathetic dereliction of duty.

There is the issue of Chevron deference. There's a possible issue where a bill has unclear text, and can be read in multiple ways, and you might think that one way is constitutional but another not.

Wouldn't make a huge difference either way, but you could imagine signing the Civil Rights Act of 1964 and saying in a statement that it doesn't allow, much less require, quotas, and if you thought it did, you would have vetoed it.

Of course, that wouldn't necessarily get you far with the Supreme Court, just as the original Triple H's statement on the floor of the Senate regarding the same bill didn't mean much.

[John Thacker]

Certainly there's a difference between saying that some clauses are unconstitutional, and saying that some possible interpretations are unconstitutional, though.

There's another possible issue of signing a bill thinking that some provisions are unconstitutional, but thinking that you'll like what's left after the Supreme Court strikes down the unconstitutional parts. (Depending on how the drafting of said bill addressed severability.)

[Pro Libertate]

The kicker is that if you come out and issue a statement that a bill is unconstitutional, you're going to be in trouble if you try to argue that you didn't think it was unconstitutional later.

Does Chevron deference apply to presidential, as opposed to administrative agency, actions? It's been too long since I've paid any attention to administrative law.

[John Thacker]

Does Chevron deference apply to presidential, as opposed to administrative agency, actions? It's been too long since I've paid any attention to administrative law.

Well, presidential policy and political appointees can drive the administrative agency policy. The original Chevron case had the EPA adopting a new rule after Reagan's election, for example.

I think that you're correct that it does not apply to, say, executive orders, but it certainly applies to executive branch decisions ultimately controlled by political appointees.

[Matthew Tievsky]

Paul: "Because you show me a constitutional issue-- including ones already settled by the courts-- and I'll show you an argument."

There really is such a thing as a settled legal issue. Not everything is arguable in good faith. Otherwise you must think John Yoo owes no apologies.

R.C. Dean: "Well, other than Supreme Court saying that he has to either sign or veto the bill as a whole, and can't pick and choose which parts to enact."

You are misstating the case law somewhat. The President does not and cannot enjoy a line-item VETO, true. But what makes the veto power distinctive is that the President may exercise it for any reason at all. No one is suggesting the President may disregard portions of newly enacted laws with unbridled discretion. He may only (and, I'd argue, MUST) disregard the portions that are clearly unconstitutional.

Pro Liberate: "Signing a bill that was unconstitutional in part is a violation of a president's oath and an independent violation of the Constitution itself."

According to what authority? If the President signs the bill but doesn't enforce the unconstitutional portion, how has he contravened his duty to enforce the Constitution? (What if he vetoed the bill but Congress overruled him? He'd be in the exact same situation: he'd have to disregard the unconstitutional portion, at his own discretion.) Adding his signature to a bill with an unconstitutional portion does not violate the Constitution, because the unconstitutional portion is forever shall remain null and void. His signature does nothing to it. ENFORCING it would be unconstitutional.

[Pro Libertate]

Matthew Tievsky,

Think about it. Not all bills require enforcement by administrative agencies or the White House. And, of course, in some areas--like the First Amendment--simply enacting an unconstitutional bill can have a chilling effect. Which is also unconstitutional.

Letting the president off the hook for signing unconstitutional bills is a bad, bad idea and takes away yet another supposed check on government action.

[Matthew Tievsky]

Pro Libertate: "Think about it. Not all bills require enforcement by administrative agencies or the White House."

What kind of law is unconstitutional yet has effect without being enforced by the executive? If you can name one, I might concede that you're right under this very very rare circumstance, but that's it.

Pro Libertate: "And, of course, in some areas--like the First Amendment--simply enacting an unconstitutional bill can have a chilling effect. Which is also unconstitutional.

Letting the president off the hook for signing unconstitutional bills is a bad, bad idea and takes away yet another supposed check on government action."

If we require of presidents that they make clear, though signing statements, their intent not to enforce the clearly unconstitutional portions of the bills they sign, then there will be no chilling effect and we will not be letting presidents off the hook.

[Pro Libertate]

Any number of laws are administered by the states. Also, many laws have strictly civil implications, which means that two parties go before federal court, and the administration has no presence there at all.

Even laws with administrative enforcement directly tied to them will remain on the books after the non-enforcing president is long gone. What good does his refusal to sign do then? No, allowing unconstitutional laws to be enacted is a clear breach of the oath and of the requirements of office.

Obviously, this only applies when the constitutionality of all or part of a bill is clear. It's going to be a gray area much of the time. And, since Congress passed these bad bills in the first place, who is going to call out the president? The Court may chastise a president and Congress, but it won't be able to do much more than that. Impeachment is right out, of course.

[John Thacker]

And Obama has issued his first signing statement, as expected.

[John Thacker]

Gene Healy weeps?

David M. Golove, a law professor at New York University who specializes in executive powers, said the prerogatives invoked by Mr. Obama were relatively uncontroversial. Still, Mr. Golove said he was surprised by the scope and detail of the objections.

"It reflects an executive branch that wishes to demonstrate publicly a commitment to upholding all of the president's claimed constitutional prerogatives," he said, "even when the intrusions are trivial or just a matter of infelicitous wording."

The Cult of the Presidency never ends.