The Volokh Conspiracy - Still more on the Obama signing statement, plus the power to detain.

Ilya discusses Michael Stern's response to Strauss here. I agree that Strauss puts too much faith in a fluff ball of legalese. Here's an earlier post from Ed Whelan that compares Obama's statement with some of Bush's. I also received a message from a former DOJ lawyer who says that Bush's signing statements were no more scattershot than Clinton's. In fact, I found that Bush issued on average two signing statements a year that did not specify the offending sections; Clinton issued on average one such signing statement per year. In any event, not much of a difference.

The larger point, which can be easily missed, is that the signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don't care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president's commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a "news" article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage's walking-on-eggshells report on the Obama statement.)

The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush's views on presidential power in the end were all that different from Clinton's or, if they were, whether the differences would have had practical importance.

*** A note on "substantial." The Obama administration has "distanced" itself from the Bush administration by saying that it has power to detain people who "substantially supported" Taliban or al-Qaida forces rather than people who (merely) "supported" those forces, and by dropping the term "enemy combatant" (henceforth, the term shall be "detainee") from the executive's lexicon. Many media outlets fell for this one (a "break" with the Bush administration!, they proclaimed), though not the more sophisticated journalists working for the Times, the Journal, and the Post, who correctly pointed out that change was cosmetic (hence the late Friday release).

	[Eric Posner, March 14, 2009 at 2:58pm] Trackbacks Still more on the Obama signing statement, plus the power to detain. Ilya discusses Michael Stern's response to Strauss here. I agree that Strauss puts too much faith in a fluff ball of legalese. Here's an earlier post from Ed Whelan that compares Obama's statement with some of Bush's. I also received a message from a former DOJ lawyer who says that Bush's signing statements were no more scattershot than Clinton's. In fact, I found that Bush issued on average two signing statements a year that did not specify the offending sections; Clinton issued on average one such signing statement per year. In any event, not much of a difference. The larger point, which can be easily missed, is that the signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don't care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president's commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a "news" article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage's walking-on-eggshells report on the Obama statement.) The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush's views on presidential power in the end were all that different from Clinton's or, if they were, whether the differences would have had practical importance. *** A note on "substantial." The Obama administration has "distanced" itself from the Bush administration by saying that it has power to detain people who "substantially supported" Taliban or al-Qaida forces rather than people who (merely) "supported" those forces, and by dropping the term "enemy combatant" (henceforth, the term shall be "detainee") from the executive's lexicon. Many media outlets fell for this one (a "break" with the Bush administration!, they proclaimed), though not the more sophisticated journalists working for the Times, the Journal, and the Post, who correctly pointed out that change was cosmetic (hence the late Friday release).