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A Belated Presidential Signing Statement:

On Wednesday, June 24, President Obama signed the Supplemental Appropriations Act of 2009, and issued a short, laudatory signing statement. It was purely "rhetorical," to use the language of academics who study this subject, and voiced no constitutional objections.

I want to thank the Members of Congress who put politics aside and stood up to support a bill that will provide for the safety of our troops and the American people. This legislation will make available the funding necessary to bring the war in Iraq to a responsible end, defeat terrorist networks in Afghanistan, and further prepare our nation in the event of a continued outbreak of the H1N1 pandemic flu.

Two days later, apparently at about 4:15 pm on the evening of Friday, June 26, the President issued an additional statement that contained the fifth constitutional signing statement of his presidency. After four paragraphs lauding the funding the Act provides, the President stated:

However, provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

Unlike some of his recent signing statements, there was no express indication that the Administration previously communicated these complaints to Congress before enactment.

While I believe there is nothing inherently improper about issuing the signing statement a couple days late (although for reasons President Obama appropriately has recognized, it's better to tell Congress before the legislation is enacted and it's in a position to do something about it), it is certainly unusual. The only explanations I can think of offhand are that either (1) some lawyers in OLC or the Counsel's Office couldn't get their act together in time or (2) perhaps the Administration is trying to control the news cycle by releasing it on Friday evening. Let me know if another explanation occurs to you.

The Obama signing statement reflects the longstanding Executive Branch position on the President's constitutional authority in the area of foreign affairs. The signing statement was similar to ones issued by, for example, President George W. Bush. See, e.g.:

Several provisions of the Act purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad, or otherwise interfere with the President's constitutional authority to conduct the Nation's foreign affairs. These include sections 514, 560, and 581(a), and the appropriations heading related to the International Development Association, which purport to direct the Secretary of the Treasury to require the U.S. representatives to take particular positions for the United States in international organizations or require the Secretary to accord priority to a particular objective in negotiations with such an organization. Another such provision is section 567(b), which purports to direct the Secretary of State to consult certain international organizations in determining the state of events abroad. These provisions shall be construed consistent with my constitutional authorities to conduct foreign affairs, participate in international negotiations, and supervise the executive branch.

Signing Statement for H.R. 2506, the "Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002" (Jan. 10, 2002).

It does not appear that the NY Times, the Washington Post, or the Boston Globe covered the signing statement in their newspapers. Charlie Savage of the Times did a brief blog post on the statement, although one might say it lacks the "urgency" of some of his earlier Pulitzer-Prize-winning reporting on the subject.

PersonFromPorlock:

Let me know if another explanation occurs to you.

Well, the obvious one: Obama doesn't read the bills he signs onto, either.
6.29.2009 5:49pm
Monty:
Sort of a different version of your '(1) some lawyers in OLC or the Counsel's Office couldn't get their act together in time':

Someone outside the normal process brought the issue to his attention after the bill was signed, and no one in OLC or the Counsel's Office identified the issue at all prior to signing. Then, all of a sudden, someone who assumed it would be dealt with calls up the whitehouse and tells them they missed it... that would be my guess
6.29.2009 5:57pm
levisbaby:
This post seems like it is solely designed to score some partisan political points.
6.29.2009 6:16pm
wfjag:

Unlike some of his recent signing statements, there was no express indication that the Administration previously communicated these complaints to Congress before enactment.

So, crossing your fingers doesn't count? How about saying "Well, that's very different. Never mind."?
6.29.2009 6:24pm
Allan (mail):
I did not like President Bush's signing statements that indicated he would not follow the law.

I do not like President Obama's signing statements that indicated he would not follow the law.

The law is the law and the executive has the responsibility to follow the law. If the executive does not like the law, then he should persuade Congress to change it. We once had a president who did not like what the Supreme Court decided, but he did nothing to protect the Indians. President Jackson was vilified.

A signing statement like this is effectively a veto. If he wanted to veto the law, if he thought the law to be unconstitutional, President Obama could have done it. What he should not do is selectively accept some of the law.

When he signs a law, he is agreeing that 1) it is a good idea and 2) that it is constitutional.
6.29.2009 6:25pm
David M. Nieporent (www):
The law is the law and the executive has the responsibility to follow the law.
The constitution is the law. A statute is only the law insofar as it doesn't conflict with the constitution.

When he signs a law, he is agreeing that 1) it is a good idea and 2) that it is constitutional.
What if he changes his mind? What if it's constitutional most of the time, but may be unconstitutional as applied?
6.29.2009 7:30pm
Bill Poser (mail) (www):
I've never understood the basis for the view that the President has the exclusive power to set foreign policy. The Constitution gives him the power to conduct relations with foreign countries. This makes sense as a way of presenting a united front and preventing confusion. However, in a system intended to distribute power, it is very much out of character to give a single individual the sweeping power of complete control over foreign policy. Furthermore, it is clear that the Constitution contemplates Congress having a good deal to say about foreign policy in that it gives Congress the power to regulate commerce with foreign nations, to set the exchange value of foreign currency, to punish piracy in international water and to declare war. For example, insofar as the power possesses the power to regulate commerce, why should it not have the power to direct that US negotiators to take certain positions or pursue certain goals in matters pertaining to trade?
6.29.2009 7:46pm
Dilan Esper (mail) (www):
I've never understood the basis for the view that the President has the exclusive power to set foreign policy. The Constitution gives him the power to conduct relations with foreign countries. This makes sense as a way of presenting a united front and preventing confusion. However, in a system intended to distribute power, it is very much out of character to give a single individual the sweeping power of complete control over foreign policy.

You are basically correct. The President, for instance, has the power to appoint an ambassador to Iran. But Congress can certainly bar the President from spending any money to build an embassy in Teheran. And Congress can refuse to confirm the ambassador.

Basically, there are VERY FEW "exclusive" Presidential powers in the sense of things that Congress can't limit. The pardon power is one. But the general intention was that Congress was supposed to make the laws and the President's power was to act within the limits set by Congress. The framers rejected the "strong and vigorous executive" that Hamilton wanted.
6.29.2009 9:07pm
Bill Poser (mail) (www):
Dilan Esper,

If I'm correct, why is it that it seems to be fairly uncontroversial that Obama is justified in his position that Congress can't tell him what positions to take, whether or not a signing statement is appropriate means of expressing it? Am I misunderstanding the consensus view of the law?
6.29.2009 9:16pm
Nunzio:
I agree with Bill Poser. I've also never liked these "executive agreements" that are end-runs around treaties.
6.29.2009 9:37pm
Dilan Esper (mail) (www):
Bill, you are correct in terms of what the Constitution says. However, we are so far down the pike in terms of executive power that there seems to be a bipartisan consensus in Washington that the President has these exclusive powers (with the only debates being how far they extend). And these issues generally are not reviewable by the courts (and the courts are filled with people who are generally fans of Presidential power anyway).

So the argument's been lost, and Obama and Bush reflect our actual practice, even though it isn't what the framers intended.
6.29.2009 9:57pm
James Gibson (mail):
I though Obama had stated he wouldn't be doing signing statements given the "socalled" abuse os thee statements by Bush. Granted its a right of the President, but are we not seeing another of Obama's promises going by the way side.
6.29.2009 10:00pm
Brian G (mail) (www):
Signing statements are unconstitutional abuses of power. At least they were during the last Administration.
6.29.2009 10:13pm
Nunzio:
James Gibson,

Obama didn't say signing statements were an abuse, he only said W.'s use of signing statements was an abuse.

Just like W.'s authorization of indefinite detention was wrong. But indefinite detention is not wrong, especially when it's Obama authorizing it.

W. was the most arrogant POTUS, until Obama.
6.29.2009 10:14pm
NickM (mail) (www):
A third possibility is that the initial reviewers (OLC?) came to one conclusion, and after it had been promulgated, someone else in the administration (State?) had a problem with the legislation and convinced the President to sign a new statement changing the first one.

Nick
6.30.2009 4:59am
mooglar (mail):
All your foreign relations are belong to us!!!

But, seriously, I'm a liberal and I don't like signing statements now any better than I did when GWB was using them. The problem is that once one President claims a power and isn't slapped down by Congress (and, at this point, I think Congress would basically have to impeach the President to actually get his or her attention), that power then becomes part of the "toolbox" for use by all future Presidents.

The inconsistency on both sides of the aisle, in being appalled by some power the President has claimed when the President is from the other party, but then being A-OK with that same power when it's their own guy, is one of the dysfunctions that allows Presidents to make successfully make these power grabs. Until the Congress decides, as a whole, regardless of party, that the President shouldn't have some powers, there's nothing to stop these inevitable Presidential power grabs.

Just to be clear: Yes, lots and lots of Democrats are showing a great deal of hypocrisy on this issue. They were screaming about signing statements before but aren't so concerned now. In the same vein, lots of conservatives didn't care much about signing statements before but are suddenly concerned now. That doesn't make either side right. It makes both sides part of the problem.

On another note, I think that pretty much every candidate for President says that there are powers previous Presidents have abused that they won't use. And I think that, in general, candidates are sincere about that when they say it. I also think that everyone, once in office, find that they are much less concerned about those powers when they, themselves, are wielding them, than they were when it was someone else. The old, "well, it would be dangerous for someone else to have this power, but since I'll use it correctly, it's okay for me." The allure of power has been the subject of drama and treatises for as long as humans have been able to scribble, and it really isn't much of a surprise that people willing to do what it takes to get power in our system -- campaigns and scrutiny and what have you -- are people who fall prey to those allures, no matter how they might have thought themselves above such things.
6.30.2009 1:34pm

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