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The presidential practice that became rather scandalous during the Bush/Cheney era hasn’t gone away completely.
When President Obama signed a budget bill on Friday, he issued a signing statement claiming a right to bypass dozens of provisions that placed requirements or restrictions on the executive branch, saying he had “well-founded constitutional objections” to the new statutes.
Among them, he singled out two sections barring the use of money to transfer prisoners from the naval base at Guantanamo Bay, Cuba, into the United States and limiting the ability of the government to transfer them to the custody or control of foreign countries. Mr. Obama said he would apply them in a way that avoided infringing on his powers, without any specific explanation of what that meant.
He also singled out 14 provisions that he said infringed upon his power to conduct foreign affairs…. “I have advised the Congress that I will not treat these provisions as limiting my constitutional authorities in the area of foreign relations,” Mr. Obama wrote.
There are plenty of angles to consider with developments like these. Right off the bat, there’s the question of the propriety of signing statements themselves.
As has been well documented, signing statements are not a new presidential tool, and while usage has varied throughout administrations, this power is nearly as old as the presidency itself.
But regardless of party, there’s cause for concern — this is a practice that’s easily abused. Ideally, Congress would pass legislation and if a president (any president) has significant enough concerns about the scope of its provisions, he or she would have to decide between signing the bill and vetoing it. Signing statements can quickly turn into an effort to find a third category: the president likes the bulk of the bill, but can issue a signing statement to note some language within legislation that doesn’t quite work for him or her.
Bush took these abuses to levels unseen in American history. Obama’s not in his predecessor’s league — many of his signing statements relate to Congress exceeding its authority over the executive branch — though criticism that he took a different line on signing statements before taking office seems more than fair.
But of particular interest in yesterday’s announcement was the Gitmo measure. The Obama administration has taken plenty of heat from the left for not having closed the detention facility, but this is a reminder that the president’s position has not changed at all — Obama wanted to close the prison at Guantanamo Bay before the election, he wanted the same thing soon after taking office, and he wants the same thing now. Congress, including members from both parties, have taken a series of steps to severely restrict the White House’s options, and even in the omnibus, told the president he can’t transfer detainees from the facility.
Concerns over signing statements notwithstanding, I’m glad Obama is still prepared to move prisoners out of Gitmo, hastening, one hopes, its eventual closure.
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c u n d gulag on December 24, 2011 9:59 AM:
Yeah, this one seems ok, 'but I still don't like the sound o' them "Boncentration Bamps."'
Kenneth D. Franks on December 24, 2011 10:15 AM:
Signing statements are a concern for the long term if they evolve to the point of being abused again as they were during the Bush years. They, remember, were talking about a Unitary Executive and trying to elevate the executive branch above the other two.
jjm on December 24, 2011 10:32 AM:
Beore this bill, Obama has issued 16 signing statements in the 3 years he has been in office.
In his first year alone, GW Bush had 24, and it went on and on from there.f
schtick on December 24, 2011 10:44 AM:
The tealiban mantra;
We have the rich and big business lining our pockets, screw you.
We make the laws for the rich and big business, screw you.
We can bend the laws to do what we want, screw you.
Do as we say, not as we do, screw you.
zeitgeist on December 24, 2011 11:53 AM:
it is well established that the President, unlike many governors, does not have the power to exercise a "line item veto." unfortunately, signing statements have evolved into something similar -- and therefore are constitutionally improper assuming the President actually means anything by them other than theater.
it may be proper for the President to issue a statement that essentially says "I'll sign it, but I don't think the following parts will withstand scrutiny." which leads to the option the post omits: challenging the unconstitutional provisions in Court. Congress and the Executive have nearly removed the third branch from arbitrating disputes as to the Constitutional allocation of powers, but there is no reason they should not be serving that function. it is true that courts often dislike that role, and try and avoid it through use of the political question doctrine, but where legislation infringes on foreign or military policy it seems like a core judicial function to address that.
beb on December 24, 2011 12:09 PM:
There is another way to deal with Gitmo. Rather just close it down just make it the most open prison in the military system. Allow any rights organization access to the prisoners at any time and without prior notice. Put all records of prisoner treatment on public display. Allow them unlimited access to their lawyers. And finally, install a branch of the courts there and expedite the trials of the inmates.
What was shameful about Gitmo was that everything there was done in secret. Bring it all out into the light of day and you won't have to worry about closing the base. Though you will have to deal with the amount of criminal behavior that went on there under Bush
Ten Bears on December 24, 2011 1:37 PM:
I wonder if that damned pipeline is amongst those "14 provisions that he said infringed upon his power to conduct foreign affairs…"
Epicurus on December 24, 2011 3:01 PM:
I agree 100% with Zeitgeist's analysis above. As Glenn Greenwald and others predicted, once Bush/Cheney established this particular precedent, the door was opened to their successor(s). It will take court action, and or impeachment to stop this now, unfortunately.
Goldilocks on December 24, 2011 11:35 PM:
Mr Obama is assessing legislation from a constitutional perspective. Mr Bush assessed legislation from a potentative perspective. There is a difference.
this is silly on December 25, 2011 1:29 AM:
Signing statements are not line item vetos. Their proper analog is to legislative history: floor statements by congressmen and the like. Some judges pay attention to legislative history to clarify ambiguous statutes, but other judges pay no attention to legislative history at all and no judges give any weight to legislative history when a statute isn't ambiguous. The important point is that signing statements, like legislative history, do not affect the language of the actual laws that are enacted and codified.
Liberals today are tying themselves into knots trying to defend Obama's signing statements, only because they foolishly made a big deal out of Bush's signing statements and now feel committed to the position that signing statements were awful. In actuality, Bush's signing statements were never a big deal to begin with. That's why Obama's aren't a big deal today either. The only reason why Bush's signing statements were ever noteworthy was that they evinced his administration's general *attitude* of contempt toward the democratic process. But the *practices* of the administration that were actually objectionable were other things. Getting mad about signing statements has always been dumb.
jhm on December 25, 2011 6:42 AM:
I think that, especially in these national security cases where it seems that no citizen has standing, and often no one is aware of the actions the executive takes in the first place, these signing statements should be somehow hard wired into a judicial review of the claims.
tko on December 25, 2011 3:42 PM:
Yeah, Obama wanted to close Gitmo, but bring the indefinite detention without trial to the US to a prison in Illinois. We can't give those "people" trials without exposing that "evidence" was gained through the use of torture, when people are always most truthful. Obama has already given a free pass to the torturers so let's all get in lockstep behind him for the next election.
bdop4 on December 26, 2011 10:13 AM:
Agreed, tko. Closing Guantanamo doesn't mean a thing if the result is moving people to an identical facility somewhere else. It's all form over substance.