Archive | Presidential Signing Statements

No “Constitutional Signing Statement” for the Guantanamo Transfer Restrictions

As I suspected, President Obama didn’t go through with issuing a so-called “constitutional signing statement” with respect to the recent legislation placing restrictions on the transfer of detainees out of Guantanamo, through which he would have noted his constitutional objections to the legislation and construed it not to affect his authority to transfer the detainees, or stated that the legislation was unconstitutional and did not validly abrogate his ability to make such transfers. I think such a position would have been consistent with signing statements of Presidents of both parties back to at least President Reagan, and (if memory serves) even President Carter. (Which is not to say that those Presidents put those stated positions into action; in my experience, most legislative provisions that are the subject of constitutional signing statements are implemented as written, and the signing statement is done mostly to “lay down a marker” with Congress.)

Instead, President Obama issued a much milder statement that criticized the restrictions on policy grounds, stating that the restrictions “undermine[] our Nation’s counterterrorism efforts and ha[ve] the potential to harm our national security.” He also announced that “my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”

The Washington Post praised the President for “appropriate restraint in refusing to use the signing statement in th[e] way” most of his recent predecessors did, but said he showed “too much restraint in opposing the provisions” during the legislative process and for not vetoing them (although they were part of an important defense authorization bill). Well, whatever you think of the President’s actions, it’s clear he didn’t use the signing statement of this bill to pick a fight with the new [...]

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The President’s Recent Signing Statements

I wasn’t planning on blogging the story in the print edition of today’s New York Times (p. A15), reporting that the President may issue a constitutional signing statement “asserting that [the President] has the constitutional power to disregard . . . restrictions” contained in recently enacted legislation that would restrict his ability to transfer detainees from Guantanamo. There has been a fair amount of leaking during this Administration undertaken in an apparent effort to influence decisionmaking, and I assumed that this leak (originally reported by ProPublica) was made to embarrass the White House into foregoing the issuance of such a signing statement.  I figured that there was time enough to cover this story if the President actually issued such a signing statement.

But the following statement in the story caught my eye:

Early in his presidency, [President Obama] issued several signing statements that made relatively uncontroversial challenges. But he has not issued any since June 2009, when lawmakers of both parties expressed outrage over a statement he attached to a bill saying that he could disregard requirements imposed on certain negotiations with international financial institutions.

The online edition of the story included a hyperlink to a January 2010 article reporting that the Administration had adopted a new policy and that henceforth, the President would not issue signing statements “repeating claims of executive power that the White House has previously voiced.”  I discussed that story here.

For the record, the President has issued constitutional signing statements since June 2009. He issued a couple just this fall, this one about the Intelligence Authorization Act for FY10 (which I discussed here) and this one about the Coast Guard Authorization Act, of all things.  (The text of the most recent signing statement, which I haven’t blogged previously, is reproduced after [...]

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President Obama Issues Another Signing Statement

In my efforts to bore readers into submission, I’ve blogged a fair amount here about presidential use of “constitutional signing statements.” As then-Assistant Attorney General Walter Dellinger explained early during the Clinton Administration, such signing statements are frequently used to “express[] the President’s intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality).”

As I’ve discussed previously, earlier this year, President Obama discontinued the use of “constitutional signing statements” in response to the July 2009 kerfuffle with Congress (recounted here). It was reported that he would not stop construing laws to avoid conflicts with Executive Branch positions about the President’s powers; he’d just stop publicly announcing that fact in signing statements.

Well, some things in the Intelligence Authorization Act for FY 2010 apparently raised sufficient concerns that the President departed from his prior practice and he issued another constitutional signing statement today.

Today’s signing statement was of a common type: expressing the understanding that language in a statute providing for disclosure of information to Congress would be construed in manner consistent with the President’s duty to safeguard confidential information. See the testimony of this disreputable hack at pages 10-11 for more on this type of signing statement. 

Here is an excerpt of President Obama’s statement:

In a March 15, 2010, letter to Congress, the Department of Justice summarized my Administration’s understanding of a number of provisions. In particular, section 405 establishes an Inspector General of the Intelligence Community in the ODNI. In accordance with longstanding executive branch policy, my Administration understands section 405’s requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information. Moreover, the

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The Supreme Court and Presidential Signing Statements: United States v. Stevens

One of the things that struck me during the kerfuffle about presidential signing statements during the Bush Administration was the widely held belief that presidential signing statements were immediately and consistently implemented throughout the Executive Branch. In my experience, signing statements are typically used simply to “lay down a marker” with Congress by saying where the Executive Branch perceives the limits of legislation to be, but that statutes that are the subject of such signing statements overwhelmingly are implemented as written rather than under some limiting construction suggested by the signing statement.  In my experience, agencies intentionally implement a statute as written, but sometimes, it occurs by administrative inertia and oversight.

The Supreme Court’s opinion in United States v. Stevens today gives one example of that.  18 U.S.C. § 48 criminalizes the commercial creation, sale or possession of “a depiction of animal cruelty,” defined as a depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed” if the conduct violates federal or state law where the creation, sale or possession takes place. As the opinion notes on page 18, President Clinton issued the following signing statement.

Concerns were raised, however, during congressional consideration of H.R. 1887 that its application in certain contexts may violate the First Amendment of the Constitution. It is important to avoid constitutional challenge to this legislation and to ensure that the Act does not chill protected speech. Accordingly, I will broadly construe the Act’s exception and will interpret it to require a determination of the value of the depiction as part of a work or communication, taken as a whole. So construed, the Act would prohibit the types of depictions, described in the statute’s legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex. I

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