And Signing Statements

by dday

As I’ve noted a few times, the Bush Administration so catastrophically fucked this country in seemingly limitless weighs, that the Obama Administration could be 90% on the side of the angels and still have lots of issues where they are wrong, creating an impression that they are not fulfilling the promise of change. Well, here’s one area where they are: ending the pernicious practice of signing statements that nullify settled Congressional law based on extreme theories of executive power, which was brought to truly epic levels under Bush and Cheney.

In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such 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.

With these considerations in mind and based upon advice of the Department of Justice, 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. In issuing signing statements, I shall adhere to the following principles:

The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.

Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

Obama is essentially saying that he would raise constitutional issues BEFORE a law reached his desk. What the Bush Administration would do is negotiate a bill, and then when it passed nullify with the stroke of the pen any aspect that put a check on his executive power. Obama would give the Congress the benefit of the doubt and act with restraint in issuing signing statements, generally within the accepted practice of the previous 200-odd years. The statements typically would be used as a guideline for the Supreme Court to judge the constitutionality of a provision if it were litigated, as I understand it. That is a far cry from what essentially was a line-item veto, the way Bush used it. And the part where he writes that he would “constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection” would be far different from the boilerplate that Bush used on over one hundred signing statements:

Bush’s postsigning statement declared that he would interpret many sections of the new law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch.” In plain English, this means that many of the limits that Congress imposed on Bush’s power – and that he accepted when he took the money Congress appropriated – are null and void. Why? Because the president says so.

Best of all, instead of just looking forward, in this case he’s looking backward.

To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.

In other words, Mr. Bush, your signing statements just went poof in the night.

Charlie Savage, who basically uncovered the practice of nullifying law through signing statements during the Bush Administration, has a writeup on this memorandum. And he says that Obama’s perspective is consistent with his remarks on signing statements in a questionnaire Savage authored during the campaign.

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