Presidential Signing Statements -- Comment Thread:

Thanks to all the commenters for their discussion in the comments thread. Commenters raised two items I thought warranted brief follow-up.

First, one commenter said that the ABA had condemned President Obama's signing statements in a March 12, 2009 item in the ABA Journal. I don't wish to belabor this subject, because my point in opening my post by saying that the ABA would doubtless soon denounce President Obama's use of signing statements as (to quote the ABA Task Force Report on Signing Statements) "contrary to the rule of law and our constitutional system of separation of powers" was not to focus on the ABA in particular, but simply to illustrate that signing statements no longer provoke the criticism they once did. The goal of my original post was just to note that the President had issued another constitutional signing statement -- an event that garnered scant attention from the national media or anyone else.

The only item from the March 12 ABA Journal discussing signing statements of which I am aware is just a short news article by a staff writer for the online edition summarizing the reporting of other newspapers; it was not a statement of the ABA. That article notes that ABA President H. Thomas Wells Jr. advised President Elect Obama in November 2008 in a memorandum that "If you believe that any provision of a bill pending before Congress would be unconstitutional if enacted, you should communicate those concerns to Congress before passage and use your veto power if you conclude that all or part of a bill is unconstitutional." (That was the last of six subjects in a memorandum that also discussed judicial selection, immigration, attorney-client privilege, interrogation, and the international criminal court.) On March 10, 2009, Mr. Wells also issued a statement praising as an "encouraging step" President Obama's March 9 memorandum in which President Obama pledged to issue signing statements only under specified circumstances and "only when it is appropriate to do so as a means of discharging my constitutional responsibilities." Mr. Wells also said in his March 10 statement that "President Obama or any other President must not skirt the only constitutional remedies available to the President regarding bills: sign or veto." That general statement of principle, which preceded President Obama's first constitutional signing statement (on March 11), is, to my mind, a far cry from "calling President Obama out" on signing statements. It is a difference between stating a principle and actually applying it.

To appreciate the difference, one needs look no further than Mr. Wells's own statements. In an October 2008 statement, Wells urged both candidates for President, if elected, to "resist using signing statements as a substitute for either negotiation with Congress or exercise of veto power." That general statement is not unlike those in Wells's November 2008 letter or March 10, 2009 statement. But the October 2008 statement goes further, saying that "last week the [Bush] administration issued two signing statements that ignore th[e] fundamental principle" that "no one branch of government has too much power." Similarly, Mr. Wells's November 2008 memorandum says that the use of signing statements by the "outgoing administration" was "contrary to the rule of law and our constitutional system of separation of powers." I am not aware that Mr. Wells has issued an official statement making a similar criticism of President Obama's actual use of signing statements. See the list of his statements here.

(By the way, if you're interested in reading more about President Obama's March 9 Memo on signing statements or his March 11 signing statement raising a number of constitutional concerns in the application of the Omnibus Appropriations Act, those have been discussed on the VC here, here, here, and here.)

Second, one commenter said that he thought the problem with President Bush's signing statements was that they were vague and did not identify the provisions at issue or the precise powers he claimed. That raises a good point that hasn't been discussed much in the signing statements debate.

The vagueness charge was not a major theme in the signing statement kerfluffle in 2006; the point was not made in most the major reports (including the ABA report), speeches, and op-eds at the time, which instead focused on arguments that constitutional signing statements represent an unconstitutional usurpation of power and are tantamount to a self-help line-item veto. (Basically for the reasons outlined in my testimony and Eric Posner's posts on the subject, I think those criticisms miss the mark.) A Congressional Research Service report stated in passing that President Bush's signing statements were often vague, see CRS, Presidential Signing Statements: Constitutional and Institutional Implications at CRS-11 (Sept. 17, 2007), but noted that his signing statements "do not appear to differ substantively from those issued by either Presidents Reagan or Clinton," id. at CRS-12, and stated more generally that "vague and generalized assertions of authority [are] typical of signing statements." Id. at CRS-30. Significantly, the vagueness charge was made in a thoughtful July 2006 post on the Georgetown Law School faculty blog signed by a number of professors, including some now running the Office of Legal Counsel. Perhaps unsurprisingly given this background, President Obama's March 9 memorandum pledged that his signing statements would "identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection."

Signing statements may be vague because they fail to identify the specific provisions at issue. Eric Posner noted that his study with Curtis Bradley concluded that President Bush, on average, issued two signing statements a year that did not identify the provisions at issue, and President Clinton, on average, issued one. Signing statements may also be vague because they do not adequately describe the nature of the constitutional concern. In that regard, probably my least favorite type of signing statement is one stating that a provision "will be interpreted consistent with my power under the X Clause," because, without more, it says little about when that will occur and what the result will be. Both President Bush and President Clinton (scroll down to his comment on section 610), among others, have issued such statements. Vagueness undermines the utility of signing statements to further the dialogue between the branches of government and to inform Congress and the public about the Executive Branch's planned implementation of statutes.

While, as Eric Posner noted, some parts of President Obama's March 11 signing statement did not identify the specific provisions at issue, subsequent signing statements have done so, and most are admirably clear in outlining the ways in which the President anticipates provisions might interfere with his authorities and how he intends to implement the provision (especially considering that signing statements tend to be fairly short, and thus do not permit extended discussion of an issue). President Obama has used the "consistent with my constitutional authority" language once (in his March 11 signing statement). He did, however, outline the specific nature of his objection in the preceding sentence, which is helpful, although he did not explicitly state the extent to which he intended to comply with the statute:

Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

Jon Roland (mail) (www):
It would be useful to develop a cladistic system for signing statements, classifying them in various ways. Many of the statements we have seen are objections to what are held to be infringements on presidential power. It would be interesting if there were any that denied congressional power to enact something on the basis of the Commerce or Necessary and Proper clauses.

What I would like to see would be a statement, "I really wish we could do that, constitutionally, but we can't, so I won't implement it."

Despite rumors to the contrary, presidential signing statements are not binding on large parts of the executive branch, especially when they are vague. Members of the civil service can just ignore them and enforce the statute anyway. Administrations come and go but the civil service lingers, and is often a lawmaking body unto itself in practice.
6.8.2009 10:14am
Jon Roland (mail) (www):
Those who advocate the president negotiate with Congress to object to provisions of legislation before they get too far, or use his veto power, are not aware of how such legislation proceeds to the president's desk, often with provisions for which there is little or no advance warning, and which members of Congress vote for without realizing they are in the bill. The real problem is this "sneak it in at the last minute" strategy, which often leaves the president in the untenable position of having to veto legislation most of which he needs to do important things (from his viewpoint). It can become a kind of extortion to do that.

One proposal has been to require all bills to be voted on twice in each house, with a cooling off period between votes, and an opportunity to vote on amendments from the floor, and a second conference if the versions diverge.

It also needs to be made easier for Congress to pass small bills on a single subject without the incentives to lump a lot of stuff into single giant omnibus bills.
6.8.2009 10:43am
Beatneuntaits (mail):
6.8.2009 10:44am
Generally Obama has framed signing statements like the one you quote along the lines of "this provision attempts to unconstitutionally condition my powers on someone's advice, so I'm going to listen to the advice but treat it as non-binding." For example, several provisions which purport to require the President to consult with specific congressional committees before making appointments have been handled in this manner.

In terms of presentation, I think that is probably the better course, although it boggles my mind that anyone could think some of these provisions are constitutional in the first place. (The President can't take a given action unless his military subordinates recommend it? Seriously?) Perhaps the difference is explained by the fact that where the unconstitutional condition relates to conferring with a co-equal branch, it's more diplomatic to say "I'm happy to listen to Congress' input on a non-binding basis" than to say "I'm not required to listen to anything Congress has to say" - but where the legislation attempts to condition the President's actions on the advice of a subordinate, there's no need to worry about interbranch comity.
6.8.2009 10:55am
M N Ralph:
Professor Elwood, what do you think about the ABA's recommendation for some sort of court review of signing statement issues? I'm not sure to what extent the case and controversy clause impedes the sort of system the ABA was recommending, but otherwise it seemed like an excellent idea to me.
6.8.2009 3:06pm
M N Ralph:
Here's the proposal I'm referring to from the ABA Report:

FURTHER RESOLVED, That the American Bar Association urges Congress to enact
26 legislation enabling the President, Congress, or other entities or individuals, to seek judicial
27 review, to the extent constitutionally permissible, in any instance in which the President claims the
28 authority, or states the intention, to disregard or decline to enforce all or part of a law he has
29 signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and
30 urges Congress and the President to support a judicial resolution of the President's claim or
31 interpretation.
6.8.2009 3:11pm

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