Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

March 9, 2009

SIGNING STATEMENTS.... It's hard to know where to start when detailing George W. Bush's assaults on constitutional norms, but near the top of any list would have to be his signing statements. The former president used them to give laws passed by Congress a little "touch up," explaining which parts of the law he didn't like, which parts he'd ignore, etc.

While previous presidents had used signing statements sparingly, mainly to address constitutional and/or implementation questions, Bush ended up issuing nearly 1,200 legal challenges through signing statements -- more than every other president in American history combined, times two.

Today, President Obama issued a message to administration officials regarding Bush's signing statements: feel free to ignore them.

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute. [...]

Mr. Bush frequently used signing statements to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, claiming that the laws did not need to be enforced or obeyed as written. [...]

His use of signing statements prompted widespread debate. The American Bar Association declared that such signing statements were "contrary to the rule of law and our constitutional separation of powers," calling on Mr. Bush and all future presidents to stop using them and to return to a system of either signing a bill and then enforcing all of it, or vetoing the bill and giving Congress a chance to override that veto.

Obama said he would consider using signing statements as president, but would take a modest approach, and limit them to bills that include provisions of dubious constitutionality.

In other words, Obama is returning to constitutional and institutional norms that existed before 2001.

Steve Benen 2:45 PM Permalink | Trackbacks | Comments (28)

Bookmark and Share
 
Comments

Obviously some kinda Commie traitor we got usurpin' the White House

Posted by: bikelib on March 9, 2009 at 2:43 PM | PERMALINK

In previous years as there was great wailing and gnashing of molars about these signing statements, I always said for people to get a grip; the statements of no constitutional significance, at least if what they are saying contradicts the plain meaning of the bills they accompany. George W. Bush did many terrible things, some of which will take years to fix, but these statements will be relatively easily dispensed with.

Posted by: jimBOB on March 9, 2009 at 2:46 PM | PERMALINK

Nice to hear the terms "Presidency" and "American Bar Association" used in the same sentence again. Following this up, Obama should (and I hope/assume will) return to the standard practice of having the ABA vet federal judicial appointments, rather than Bush's execrable, neofascist Federalist Society.

Posted by: ericfree on March 9, 2009 at 2:47 PM | PERMALINK

Good move, Mr. President!

But why not draw a bright line between you and your separation-of-powers-violating predecessor, and forswear this practice entirely?

It's not as if giving up signing statements ties the president's hands or anything.

Posted by: Chris S. on March 9, 2009 at 2:49 PM | PERMALINK

"George W. Bush did many terrible things, some of which will take years to fix, but these statements will be relatively easily dispensed with."

...provided, of course, that we got either a President who had respect for Constitutional Law, or a Congress which vigorously pursued its over-sight duties. We are lucky enough to have gotten the first. But that was a pretty serious bullet we've dodged. If the precedent had continued, it would have been much harder to dislodge.

That's what you get with a government, or a business, or any organized group of people: inertia. Let something go for long enough and it becomes a tradition. Once it gets to that point, people will fight against undoing it, no matter how obviously it should be.

Posted by: Shade Tail on March 9, 2009 at 2:53 PM | PERMALINK

Signing statements should be written by an independent legal party (AG, SCOTUS) before the bill is signed into law. The President is suppose to execute the law, not make it.

This is Mickey Mouse non-sense and even if Obama doesn't use them often, what is going to stop his replacement ?

Posted by: ScottW on March 9, 2009 at 2:54 PM | PERMALINK

But why not draw a bright line between you and your separation-of-powers-violating predecessor, and forswear this practice entirely?

Because signing statements in themselves are not unconstitutional. They're only problematic when the effect of the statement is to announce that the President intends to ignore part of a congressionally enacted statute. But presidents often have used signing statements for other purposes, for example to say what a great new law the president just signed and how important it is. Nothing wrong with that.

Posted by: The Fabulous Mr. Toad on March 9, 2009 at 2:56 PM | PERMALINK

Here is another case where a Constitutional amendment is the practical solution.

An amendment that simply says Signing statements may not be used.

Constitutional amendments can happen a lot faster than people seem to realize.

In this case Republicans are crazy to limit Obama's powers and Democrats never want to see another George Bush. Everyone would be on board for it, fast.

Posted by: alan on March 9, 2009 at 3:00 PM | PERMALINK

Scott W, the Supreme Court can't write signing statements, both because that would violate the separation of powers and because the federal courts don't have jurisdiction to issue advisory opinions. Signing statements aren't necessarily a problem. It's not even a problem when the President announces that he's not going to follow part of a statute, for example, if that part of the statute is identical to one that has previously been held unconstitutional by the Supreme Court (this happens all the time). What Bush did was different -- he used signing statements more often than any other president, and he used them to reject congressional limitations on the exercise of executive authority, on the basis of a very dubious "unitary executive" theory cooked up by a couple of neocon lawyers. It isn't necessary for Obama to forswear signing statements completely in order to avoid that, and it's highly doubtful that anything Obama could do about this would be effective later if a successor president decided to do something different. What could he do, issue an executive order?

Posted by: The Fabulous Mr. Toad on March 9, 2009 at 3:05 PM | PERMALINK

Obama said he would consider using signing statements as president, but would take a modest approach, and limit them to bills that include provisions of dubious constitutionality.

This sounds to me like what Bush would have said. I thought the issue was that if you think a law is unconstitutional, you veto it, or advise Congress ahead of time so that when you sign a bill, you are approving it as written.

Posted by: Danp on March 9, 2009 at 3:14 PM | PERMALINK

So, another POTUS (or even Obama if he changes his mind) is free to go back to the Bush standard?

Congress and the courts need to assert themselves.

Posted by: Carl Nyberg on March 9, 2009 at 3:18 PM | PERMALINK

Danp: So, a while back, the Supreme Court held that a provision known as the legislative veto was unconstitutional. Hundreds of laws contained a legislative veto, which is basically a way of retaining congressional control over federal agencies by providing for either house of Congress to be able to vote to overturn agency regulations. Even after that type of provision was held unconstitutional, Congress passed many more bills with the same type of provision in them. Should the President veto every such bill that comes across his desk, or should he just add a signing statement that he intends to follow the Supreme Court's ruling? The latter makes a lot more sense in lots of political situations (for example, if the LV provision is one tiny paragraph relating to one tiny provision in a 600 page apportionment bill).

Posted by: The Fabulous Mr. Toad on March 9, 2009 at 3:21 PM | PERMALINK

Folks, Congress can't do anything about this, unless they pass a veto-proof bill outlawing signing statements, and even then, such a bill probably would violate the separation of powers. The Supreme Court is highly unlikely to get involved either. It's hard to imagine a case where this would be an issue. Like it or not, Presidents do have a certain amount of constitutionally conferred discretion on how to run their shops. Obama's just saying he's going to run his in a reasonable way, like prior presidents, not in an extreme and unprecedented way, like Bush. It's really fine.

Posted by: The Fabulous Mr. Toad on March 9, 2009 at 3:24 PM | PERMALINK

IOW, Bush didn't think he had to obey the laws he signed, Obama does.
Obama is doing a whole lot of things that really wouldn't be unusual at all following any other administration in history other than the last one.

Posted by: Allan Snyder on March 9, 2009 at 3:31 PM | PERMALINK

Are you guys still talking about the Constitution? Didn't GWB make it clear that it's just a piece of paper?

Posted by: lamonte on March 9, 2009 at 3:32 PM | PERMALINK

Fabulous Mr. Toad - I must admit, I'd never heard of the congressional veto. But how is it different if the Congress passes a law forbidding an interrogation technique used by the CIA? I trust Obama, but I can't say I'm terribly comfortable with this process.

Posted by: Danp on March 9, 2009 at 3:35 PM | PERMALINK

Gol Durned Persnickity constitutional law perrfessers. There they go puttin the constitution back in govmn't ...dag nab it

Posted by: Gabby Hayes on March 9, 2009 at 3:40 PM | PERMALINK

Thank you Danp for pointing out that Obama's actual statement contradicts Steve Benen's interpretation of it. I agree that Obama is doing nothing different than what Bush did. The president is not the arbiter of constitutionality -- the Supreme Court is. This is an example of Obama failing to roll back the abuse of power that occurred during Bush's term.

Posted by: WhyNot on March 9, 2009 at 3:44 PM | PERMALINK

Why Not - I most certainly do not agree that Obama is "doing nothing different than what Bush did." I am troubled by his language, but even if he leaves it as is, I would certainly not expect him to use signing statements the way Bush did. If he does, we will know it, but to assume it is idiocy.

Posted by: Danp on March 9, 2009 at 3:57 PM | PERMALINK

Danp: it's different because Bush's refusal to follow congressional direction on torture was based on a "unitary executive" theory that was a figment of Bush's lawyers' imagination and didn't have a single Supreme Court decision to back it up. So it didn't comply with the President's duty to take care that the laws be faithfully executed. On the other hand, if the President refuses to abide by a legislative veto, he's actually complying with this duty, because the Supreme Court has said legislative vetos are unconstitutional. Where there's a genuine conflict, following Congress isn't always the right answer. But to invent a conflict just so you won't have to follow Congress is not legitimate.

WhyNot: That's not completely true, despite Marbury v. Madison. All three branches of government have a duty to interpret the Constitution, and there are some issues the Supreme Court will never get a chance to rule on, or would decline to rule on out of deference to the political branches.

Posted by: The Fabulous Mr. Toad on March 9, 2009 at 3:59 PM | PERMALINK

Many of the signing statements, IIRC, were for executive branch agencies to ignore Congressional directives to perform some action (like write a report) by a certain deadline. This makes me wonder: who is responsible for telling agencies when a new law affects them? Must agencies stay abreast of every act of Congress lest they unwittingly violate a single line-item? Or does Congress make a courtesy call to the agency's general counsel when the line item is proposed?

Posted by: Grumpy on March 9, 2009 at 4:00 PM | PERMALINK

How long before Karl Rove writes a blistering column condemning Obama for a future signing statement he makes?

Posted by: Cool on March 9, 2009 at 4:17 PM | PERMALINK

I appreciated the return to the rule of law but we need a guarantee -- protection in fact -- against a return to lawlessness the next time we happen to have a Republican in the White House.

This goes for a number of things. We just can't have a 'duck, duck, goose' situation where it's 'follow-the-law', 'follow-the-law' when the Dem's are in office and then 'do whatever the hell you want', when a GOPer comes in.

Posted by: leo on March 9, 2009 at 4:25 PM | PERMALINK

Signing statements are not, in and of themselves, bad.

Historically, presidents have largely used signing statements to document a position regarding legislation. The primary purpose was to have a position and/or interpretation 'on the record' if/when legislation came in front of the federal courts.

Under George the Junior, they became a means of redefining legislation and that is horrible! You must remember that many of Bush's signing statements were kept secret so that Congress would not even know that he had 'reinterpreted' the legislation.

If there is to be law written regarding signing statements, it should be that they cannot be secreted from Congress.

Posted by: SadOldVet on March 9, 2009 at 4:41 PM | PERMALINK

Correction to lamonte's posting.

George Bush did NOT say that "the Constitution is just a piece of paper".

What he said was the Constitution is "just a goddamned piece of paper!"

The difference are more than nuance and more fully displays the full contempt of Bush for the Constitution.

For a link to reporting of that meeting with GOP Congressional Leaders in November of 2005:

http://www.rense.com/general69/paper.htm

That George Bush, that contemptable little man, ever held the presidency will forever be a black stain on the American electorate.

Posted by: SadOldVet on March 9, 2009 at 4:52 PM | PERMALINK

Danp, if he does not intend to usurp the powers of the judicial in declaring laws constitutional or not, why is he even reserving the right to issue signing statements? Where is the difference with Bush if he uses his signing statements to "disagree" with legislation instead of letting the judicial process take its course? I don't expect Obama to become a Republican, but I surely didn't expect him to set aside separation of powers, constitutional scholar that he is. I am disappointed.

Posted by: WhyNot on March 9, 2009 at 5:39 PM | PERMALINK

we need a guarantee -- protection in fact -- against a return to lawlessness

The Constitution provides such a protection - it's called the impeachment process. Bush got away with it because he had a lawless party to keep him from facing the consequences of his own lawlessness.

In the end it's the responsibility of the electorate not to allow lawlessness to become the norm among elected officials. If enough elected officials are corrupt no amount of organizational jiggering will be enough to produce honesty.

We could think about making impeachment easier. Of course if it was what would have happened to Clinton?

Historically, presidents have largely used signing statements to document a position regarding legislation. The primary purpose was to have a position and/or interpretation 'on the record' if/when legislation came in front of the federal courts.

And this is a completely legitimate way to use signing statements. Note that this only allows leeway in cases where the legislative language is ambiguous. If the language is clear, writing a contradictory signing statement accomplishes nothing, as the legislative language will trump anything in the signing statement.

Posted by: jimBOB on March 9, 2009 at 7:27 PM | PERMALINK

The guy is reducing the power of his own presidency.

Anybody still got any of that Kool-Aid around?
How is it?

May I have just a sip?

Smells good. Grape, right?


Posted by: toowearyforoutrage on March 9, 2009 at 10:11 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly