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Recalling Candidate Obama on Signing Statements:

A quick, further note to co-blogger John Elwood's posts on the Obama administration's use of signing statements. I'm sure someone has mentioned this in the comments somewhere, but over at Opinio Juris, Julian Ku has posted up video of then-candidate Obama denouncing the use of signing statements and promising not to use them. "Hypocrisy" is a strong word, but I'll agree with Julian that it fits in this case; likewise the shrug from President Obama's supporters that heck, all presidents do it. Yes, of course, all presidents do it. Not all presidents do it, however, after promising not to do it. It's not the fact of doing it, it's the fact of breaking the promise, and with the complete confidence that no one of any significance will call you on it, starting with the press. The video is fascinating viewing as an artifact from the media memory hole, and thanks to Julian for putting it up.

Update: Let me add a little more with this post from Roger Alford, also at Opinio Juris, noting Harold Koh (late of the Koh wars) on presidential signing statements, back during the Bush years.

Glancing over the comments, it seems to me that the issue is whether or not Obama, those who people his administration, the ABA, and others are consistent in applying the rhetoric and standards they proclaimed during the Bush years - including the vehemence and bluster and fury - to the Obama administration. One of the commenters suggests that to focus on "did he break his promise" is juvenile. Let me suggest that it is not. Not, at least, when breaking the promise involves no acknowledgment that the predecessor one attacked for doing the same thing might have been right, or at least as right as you.

I worked for a law partner once, as a very junior associate, in which it was pretty clear that we had made a mistake in analysis that might well cost the client lots and lots and lots of money. The partner told me that the way to deal with this situation was to look the client straight in the eye and say, "Consistent with our earlier advice to x, not-x."

Update 2: In the comments to Opinio Juris's post by Julian Ku, mentioned above, the always reasonable Ed Swaine responds to Julian re the charge of hypocrisy. Scroll down comments to Julian's post to find it.

Update 3: And at comment number 15 in Julian's post, a response by Charlie Savage of the NYT. Am I alone in finding the tone of Savage's comment slightly, what, affronted? The unnecessary drive by shot at Glenn Reynolds at the beginning bore a certain resemblance to, I don't know, some of the less productive comment threads here at VC! But maybe I am just reacting to the attack on Glenn - not because Glenn is beyond attack, but because this was pure snark, a little sneer before getting on with things. (I am struggling with my Good Angel and Bad Angel over whether to post a snarky thing of my own - entirely on the tone, not substance, of Savage's comment. I don't believe in snark. But sometimes I do give way to the Dark Side.)

Update 4: I'm pleased to note that Charlie Savage has apologized to Glenn Reynolds for the rather snarky opening of his OJ comment. It's been added into the comments section.

corneille1640 (mail):
You're obviously correct that it is hypocrisy, and nothing excuses Obama from that charge. My only quibble is that Obama might have actually meant to keep the promise when he made it. (Or he might not have, it's hard to know. It is interesting, though, that once someone assumes the presidency, he begins to act like a president, assuming the prerogatives of the office.)
7.1.2009 8:52am
Tracy Johnson (www):
It isn't so bad, he could have issued a verbal order.
7.1.2009 9:02am
Steve:
I am pretty sure the campaign's written position on this issue was more complex and realistic than this extemporaneous answer. As I recall, all the Democratic candidates acknowledged that signing statements have been routinely used by past presidents, and pledged to pare back Bush's use of them as opposed to never issuing a signing statement.
7.1.2009 9:02am
cirby (mail):

My only quibble is that Obama might have actually meant to keep the promise when he made it.


Well, from his history since taking office, what are the odds? Has he kept any of his major promises? More than five percent? Certainly not more than one out of ten...
7.1.2009 9:04am
BN (mail) (www):
You should link to Obama's March 9th memo about his use of signing statements LINK before you call him a hypocrite. This issue isn't a black or white one.
7.1.2009 9:11am
Eric Rasmusen (mail) (www):
Thanks for the link, BN, but that March 9 memo just digs the hole deeper. One quote summarizes what he says:

"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."

That is, he'll only use signing statements when he thinks he ought to use signing statements. How is that different from the Bush policy?
7.1.2009 9:23am
Commentor (mail):
Regarding Obama's record on keeping promises, check the following site:

http://www.politifact.com/truth-o-meter/promises/
7.1.2009 9:30am
Preemptive Sarcastro:
It's terrible that Obama is breaking his promises to be different from Bush, which would be terrible!
7.1.2009 9:32am
Widmerpool:
"This issue isn't a black or white one." True. I can say, "black is white." And, then, later, I can have my campaign issue a clarifying statement that "black is white except in those instances where black is black or, in some cases, gray or purple." Finally, I can have my vice-president categorically announce: "I would not subject my family to believing black is white but that might be appropriate for others." The vice-president's spokesperson could then issue a clarifying statement: "Regardless of what the vice-president might have quipped as an off-the-cuff remark that everyone has come to love as part of his bumbling, regular-joe, six-pack-and-hamburger-with-grey-poupon persona, he meant to say that for both he and his family and anyone else black is indeed white until further developments prove otherwise."
7.1.2009 9:33am
Mikhail (mail):
Does a campaign promise carry more or less weight than a memo issued after the campaign is won? In this case, I fail to see how the concept of hypocrisy can be turned into a complex issue.

Take the following statement:

I pledge that I will not pick your pocket | unless I need the money

I think that the link from BN shows that Obama supporters are willing to view such as statement (like the one above) as two distinct positions when, in fact, it constitutes one conditional clause.
7.1.2009 9:38am
AF:
Obama didn't promise not to use signing statements. He promised not to use them to "get his way" or "as a way of doing an end run around Congress."
7.1.2009 9:39am
cboldt (mail):
@Widmerpool - LOL. And in conclusion, my actions are completely consistent with my promises.
7.1.2009 9:40am
Fugle:
If you watch the video closely, Obama had his fingers crossed behind his back, so it wasn't really a "promise."

Plus, he never said "cross my heart and hope to die, stick a needle in my eye."
7.1.2009 9:42am
Owen H. (mail):
Obama didn't say he wouldn't issue signing statements; they are quite common after all. What he said he would not do was to use them as Bush did, and so far he hasn't. The only hypocricy here is those claiming he did and condemning it, even as they supported Bush doing so.
7.1.2009 9:46am
BN (mail) (www):
The difference is a matter of degree. Bush used signing statements to bypass Congress' wishes. Obama hasn't. (I don't want to get link happy, but if you need me to link to this Boston Globe article please ask)

''The whole point of the McCain Amendment was to close every loophole," said Marty Lederman, a Georgetown University law professor who served in the Justice Department from 1997 to 2002. ''The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism."


Few people noticed or objected to Bush's signing statements until he used one to totally disregard Congress. To date, his signing statements haven't come close to scope of Bush's signing statements. If and when Obama does the same thing he will be treated the same way.
7.1.2009 9:47am
Commentor (mail):
I urge everyone to watch the link. Obama did not promise not to issue signing statements; he promised not to use them "to get his way" or "to make an end run around Congress."

I'm sure he has broken other promises, and he may break this one, but lets make sure we accurately describe what he promised to do.
7.1.2009 9:57am
TMac (mail):
Surprise, surprise. Obama is a lying-ass politician, just like the rest of them.
7.1.2009 10:00am
Jonathan W. (mail) (www):
BN, correct me if I am wrong but isn't a signing statement always a pure use of executive power?

Of course, a signing statement could be used to commemorate the anniversary of the birthday of Bozo the Clown, and hence viewed harmless. But still, a signing statement by virtue of its unique action does not consider the advice and consent of any other branch. No?
7.1.2009 10:04am
BN (mail) (www):
But still, a signing statement by virtue of its unique action does not consider the advice and consent of any other branch.

No, it isn't always a pure use of executive power. Clarifying a minor issue in a bill is not a power grab. Rejecting a major tenet of a bill you sign is a power grab. This is why people were upset with Bush. He signed bills with major provisions that he had no intention of following.

Substituting a signing statement for a veto is the real issue here. This is what Obama promised not to do, and, so far, he has kept that promise.
7.1.2009 10:14am
rarango (mail):
What Tmac: why is any one surprised that Obama is a bald faced liar who said anything to get elected--what part of that is difficult to understand? He's simply a liar. (not that McCain wasnt--its just that we elected the other liar)
7.1.2009 10:15am
Guest12345:

Substituting a signing statement for a veto is the real issue here. This is what Obama promised not to do, and, so far, he has kept that promise.


According to John Elwood, Obama has made four such signing statements so far.
7.1.2009 10:22am
BGates:
Obama did not promise not to issue signing statements; he promised not to use them "to get his way"

Nothing Obama does is to "get his way". He acts only for The People, and for the good of the world.
7.1.2009 10:27am
BN (mail) (www):
According to John Elwood, Obama has made four such signing statements so far.

Which of those bills should Obama have vetoed? Are you against all signing statements?
7.1.2009 10:30am
Thales (mail) (www):
What's objectionable to most people that think about the issue is not the fact of signing statements--in themselves they are just Presidential free speech with no legal weight whatsoever. Rather, it is the dubious or opaque claims in some of them, notably (but not exclusively) Bush II's. It's one thing to say I interpret ambiguous provision X to mean "this," because if provision X means "that", X is unconstitutional. Or to say overall the bill is constitutional, but for the following reasons (insert detailed conflicting statutes or constitutional provisions) I cannot enforce X within my duty to faithfully execute the law. It's quite another to say I mat not enforce some provision of this law (but I'm not telling you which one) because it conflicts with my inherent commander in chief authority (but I'm not explaining how or why).
7.1.2009 10:33am
Guest12345:

Which of those bills should Obama have vetoed? Are you against all signing statements?


Don't ask me. I'm just pointing out that four of his signing statements extend beyond simple commentary and approval of the bill, to saying things like "section 1200 encroaches on my prerogatives as president to set foreign policy."

Signing statements are not part of any president's powers. As much as they do anything it is merely to state a particular president's intentions as to how they are going to enforce the law. Given that, constitutionally, a president is supposed to sign the legislation or veto it if he believes it to be unconstitutional, any signing statement where a president says "I believe this legislation to have unconstitutional sections" and signs anyway, then that president is failing to carry out his proper duty.
7.1.2009 11:03am
Constantin:
Just words.
7.1.2009 11:20am
Daniel Chapman (mail):
The focus on "signing statements" is misplaced. The president has a constitutional duty to avoid enforcing unconstitutional laws. The legislature has limited authority to restrict the president during wartime. Bush just happened to use a signing statement to say he would not enforce the parts of a law that he believed was unconstitutional. It was the medium, not the message.
7.1.2009 11:24am
taney71:
Why are so many people here trying to explain what Obama said or meant when anyone can just click on the video of Obama saying he WOULD NOT USE THEM?

Just click the video to see what candidate Obama said.
7.1.2009 11:25am
Owen H. (mail):
Click it yourself. He did not say he would not use them at all, contrary to what is being claimed. That has been pointed out several times now.
7.1.2009 11:40am
Hannibal Lector:
Click it yourself. He did not say he would not use them at all, contrary to what is being claimed.
I just listened to the whole link. It starts with a questioner asking whether Obama will use signing statements. Obama vehemently answers "NO". He then rambles on for a minute or so about what signing statements are, why they are bad, how Bush used them, and why that was bad. He concludes with words to the effect, "I will not using signing statements to thwart the will of Congress."

It's sad that your Obamamania manifests itself as a new form of dyslexia that makes it difficult to understand recordings of the "messiah" when his words contradict his actions.
7.1.2009 11:52am
RPT (mail):
I haven't seen any discussion of any issues here; just the juvenile and disproven "he broke his promise" meme.
7.1.2009 11:53am
Metoo (mail):

"All Presidents do it"??

Where is the Change??
7.1.2009 11:53am
Hannibal Lector:
Supra: dyslexia should be aphasia.
7.1.2009 11:54am
Laura(southernxyl) (mail) (www):

President Obama defended his policies on gay rights on Monday, telling an audience of gay men and lesbians that he remained committed to overturning the military's "don't ask, don't tell" rule and that he expected to be judged "not by promises I've made but by the promises that my administration keeps."


NYT article

You can't make this stuff up.
7.1.2009 12:13pm
Owen H. (mail):
Hannibal-

Nowhere does he say what you claim. The questioner doesn't ask him if he is going to use them.

"Do you promise to not use Presidential Signings to get your way?"

"Yes"

That's rather different from what you and others keep claiming he said. He has not used a signing statement to thwart the will of Congress. So show where he has ever said flatly that he will not issue any signing statements at all.
7.1.2009 12:44pm
conlaw2 (mail):
This seems to be another example of taking a complex answer and rooting out all the complexity to make it a yes or no answer. This is great for sound bites, and news clips and talking heads but aren't we supposed to be using our full brains here.

I do not know what to think in this case. Do the posters lack the desire to seriously take on the statements and the issues in their complexity or do they lack the ability?
7.1.2009 1:02pm
guest:
The Obama apologists want to draw a distinction between signing statements per se and signing statements that are used "to get one's way."

How absurd. If Obama is not using a signing statement to try to "get his way" (whatever that means) then why he is using it at all?
7.1.2009 1:15pm
Baseballhead (mail):
Do the posters lack the desire to seriously take on the statements and the issues in their complexity or do they lack the ability?
Are you new here? Because the answer is, and has always been, yes.
7.1.2009 1:23pm
Owen H. (mail):

The Obama apologists want to draw a distinction between signing statements per se and signing statements that are used "to get one's way."


That would be because there is one.
7.1.2009 1:31pm
PLR:
I voted for Obama as the (dramatically) lesser of two evils. If he breaks campaign promises that I thought were overbroad and foolhardy to begin with, I couldn't care less.

Presidential signing statements can be benign or can represent a usurpation of proper legislative functions. I don't mind devoting a few brain cells to distinguish one from the other.
7.1.2009 1:42pm
guest2 (mail):
Guest: How absurd. If Obama is not using a signing statement to try to "get his way" (whatever that means) then why he is using it at all?

It isn't absurd if Obama believes his actions are not to get "his way" but merely to correct a typographic oversight of Congress who really don't know no better. This justification admits of everything. I assume he whispers, "Let not my will be done, O Congress, but thine," as he signs.
7.1.2009 1:44pm
finman:
That Obama can say or do no wrong is an axiom. If he does something he promised he wouldn't, our senses must be deceiving us. Either he didn't really make the promise (our ears are deceiving us), or he didn't really do what our eyes suggest he did.
7.1.2009 1:45pm
BGates:
That would be because there is one.

There is One. Everything He does is right.

This seems to be another example of taking a complex answer and rooting out all the complexity to make it a yes or no answer.

The answer Obama gave was, and I quote, "Yes".
7.1.2009 1:48pm
mcbain:

"Do you promise to not use Presidential Signings to get your way?"

"Yes"



Reporter: Will you refrain of making fun of the Obamabots' propensity to justify anything the president does by citing semantics to amuse yourself?

Mcbain: Yes.
7.1.2009 1:57pm
mcbainbot (mail):

Reporter: Will you refrain of making fun of the Obamabots' propensity to justify anything the president does by citing semantics to amuse yourself?

Mcbain: Yes.


he only did it to amuse others. I am sure he was not amused at all by any of this
7.1.2009 1:58pm
BGates:
Presidential signing statements can be benign or can represent a usurpation of proper legislative functions.

Can Obama usurp something Congress has surrendered? They didn't finish writing the climate bill before the House passed it. Say Pelosi has an aide write "Bill to make the bad men pay to make everything good in America" on a blank sheet of paper; after it gets every Democratic vote on the Hill, why not have Obama fill in the blank spaces with his wisdom? He spent nearly 4 years in Congress, you know.
7.1.2009 2:00pm
conlaw2 (mail):
I get it, BGates, you are doing a satire of one of those guys that just hates democrats no matter what they do. Bravo!
7.1.2009 2:10pm
BGates:
conlaw2, that's as stirring a defense of Obama as I believe you're capable of. Good for you.
7.1.2009 2:22pm
theobromophile (www):
This may have been mentioned earlier, but the thing that irks me about Obama in this case is that he ran on a platform of "change." He convinced millions of people to vote for him because he promised to act unlike other Presidents and to fundamentally alter the way that business is done in Washington. The actual scope of his anti-signing statements words are not the issue; nor is this about a broken campaign promise. When his entire campaign was predicated upon doing things differently, signing statements among them, Obama is not in a position to hide behind "But everyone else does it" or "Just this once." It goes to the heart of his promises for high public office.

As far as I can tell, there are but two options to explain the discrepancy: Obama never actually meant what he said (meaning that he spent two years lying to the American public), or he was so ignorant of what the Presidency entails that he didn't really know what he was promising.

Neither one gives me any faith in our duly elected leader.
7.1.2009 2:34pm
The Unbeliever:
"All Presidents do it"??

Where is the Change??
In between Joe Biden's couch cushions.

But don't go looking for it, they plan to use that and Hope to pay for ObamaCare.
7.1.2009 2:35pm
Owen H. (mail):

The answer Obama gave was, and I quote, "Yes".



And the question was NOT, "Do you promise never to use signing statements ever ever?". He promised not to do as Bush did. He hasn't.
7.1.2009 3:54pm
levisbaby:
I guess we can look forward to another 3 (or 7) years of listening to all of the self-proclaimed conservatives squealing like little piglets about all of the things that Obama is doing wrong.

Nice life on you guys.
7.1.2009 4:10pm
Matt_T:
levisbaby, the first rule of being a VC troll is to be funny. You aren't. Please retire.
7.1.2009 4:22pm
levisbaby:
Ohh, I hear another piggy...
7.1.2009 4:49pm
ShelbyC:

Ohh, I hear another piggy...


That's all you got?
7.1.2009 5:11pm
Cato The Elder (mail):
I have to agree with theobromophile. It's really the whole obnoxious CHANGE mantra we were put through in 2008 that makes it worth calling out the hypocrisy, that elevates the thing from mere pettiness to a generalizable substance.
7.1.2009 5:11pm
Cato The Elder (mail):
Which major campaign plank will the heretofore change-less Obama renege upon?
7.1.2009 5:15pm
RPT (mail):
How about investigating the lawyers when the CIA and OLC IG reports finally come out? That would be a nice change.
7.1.2009 5:26pm
levisbaby:

That's all you got?

Fortunately, I don't really need to have much more than that. The faux-conservative wingnuts are doing an outstanding job of making themselves more and more of a joke every single day.

Keep up the good work.

((Have you started painting Palin/Jindal 2012 signs in your basement yet???))
7.1.2009 6:04pm
Le Messurier (mail):
levisbaby:

((Have you started painting Palin/Jindal 2012 signs in your basement yet???))


Your hatred is showing and Bush has been out of office for over 5 months!
7.1.2009 6:43pm
Uhhh:

Fortunately, I don't really need to have much more than that. The faux-conservative wingnuts are doing an outstanding job of making themselves more and more of a joke every single day.


Have VC comments really come to this?


((Have you started painting Palin/Jindal 2012 signs in your basement yet???))


Nope. I'm hoping for Barrett/Kelo 2012, or something along those lines.
7.1.2009 6:45pm
PLR:
Can Obama usurp something Congress has surrendered? They didn't finish writing the climate bill before the House passed it. Say Pelosi has an aide write "Bill to make the bad men pay to make everything good in America" on a blank sheet of paper; after it gets every Democratic vote on the Hill, why not have Obama fill in the blank spaces with his wisdom? He spent nearly 4 years in Congress, you know.

Despite the question marks, I don't believe you are seeking an answer.
7.1.2009 6:48pm
PGofHSM (mail) (www):
According to the Washington Post ("On Signing Statements, McCain Says 'Never,' Obama and Clinton 'Sometimes'," Monday, Feb, 25, 2008; Page A13), Obama said in response to a Boston Globe questionnaire:

"The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation," Obama answered. But, he added: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives."

The Post article comes up on the first page of results if you Google "obama signing statement."
7.1.2009 7:06pm
PGofHSM (mail) (www):
This could be an argument like those about "judicial activism": it's activist to invalidate a statute as unconstitutional, unless it's a statute that *I* think is unconstitutional.

Obama is basically saying that it's wrong to raise constitutional objections to legislation the president has signed, unless those objections are ones *he* considers "well-founded." (Although I don't dismiss the possibility that we'll find out through the release of executive records that Bush and his Admin secretly didn't believe in their own constitutional objections and admitted it to each other, like the i-bankers who emailed each other gleefully about recommending garbage investments.)

Legal realists may roll their eyes at this sort of thing, but those who use the phrase "judicial activism" unironically are forbidden to be scornful.
7.1.2009 7:13pm
levisbaby:

Your hatred is showing and Bush has been out of office for over 5 months!

Oh, he was just a symptom of the problem.

For too long in the country true conservatives - those of us in AUH20 mold - have stood idly by why all sorts of wingnuts, torture fanboys, corporate stooges and the like have taken over "conservatism."

It's time to take back our rightful place.

I mean, this post is appallingly petty and small minded. Is this the playing field that people want to win? "OOOhhh, he said this during his campaign and now he is doing something else. Shame, shame, shame." Good grief. How sad.

I mean it would be one thing if it were actually principled criticism - as in "I have long criticized signing statements and Obama continues this unfortunate practice." Fine, that's legit. But this small-minded blabber is really pathetic.
7.1.2009 7:24pm
jccamp (mail):
It does seem as though there are two things happening with this: Candidate Obama, speaking to a partisan crowd, overstated both GWB's actions and what his own might be, as they both relate to signing statements. His more nuanced position papers describe fairly accurately what president Obama is actually doing. A reasonable person could fairly view the linked video and find room to criticize candidate Obama's remarks, given President Obama's working theory. However, what political candidate does not overstate and/or oversimplify the issues, and vilify the opposition whenever possible. I'd term this "Big Deal."

Next, in the political climate of pre-2008, "signing statement" became a anti-Bush pejorative, inherently evil. Hardly an enlightened view, but there it is. Now that President Obama has decided that presidential authority should not be constrained by Congress, I'm sure that the ABA and others might regret those hard and fast no-signing-statement-ever positions, but that's ancient history.

Hypocritical? Sure, but no less so than any other politician on the average day. Maybe the point of the OP was not so much about the President, but more about those who were hypercritical of GWB's signing statements and the deafening silence on the issue now. And efforts to somehow draw a contrast between GWB signing statements and President Obama similar to the contrary, I suggest the issue is exactly the same. The change is in the commentary, not the subject matter.

And, I for one, am not criticizing the current President for signing statements. I see them as completely legitimate and necessary to prevent Congress from eroding the authority of the executive.
7.1.2009 8:30pm
Owen Hutchins (mail):

Next, in the political climate of pre-2008, "signing statement" became a anti-Bush pejorative, inherently evil. Hardly an enlightened view, but there it is.



Straw Man argument. The issue was how Bush was using them, that the mere existence of them. And as pointed out above, the only one that categorically stated he would not use them was McCain.
7.1.2009 8:35pm
Owen Hutchins (mail):
that should read, "..., not the mere existence of them."
7.1.2009 8:51pm
Chris L (mail):
I don't understand how anybody can argue with a serious face that President Obama's signing statements are qualitatively different form those of his predecessor or don't represent an effort to make an end run around Congress and effectively alter what it wrote. But it's kind of silly to debate these things in the abstract. So let's pick out one of Obama's signing statements. Here's the one when he signed the Omnibus Appropriations Act, 2009:

* Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

* United Nations Peacekeeping Missions. 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.

* Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

* Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

* Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.


How can anyone seriously make an argument that treating mandatory obligations imposed by Congress as "advisory," "nonbinding," or "precatory," because they don't sit well with the President doesn't constitute an end-around when it comes to the will of Congress?
7.1.2009 8:55pm
Chris L (mail):
Two more examples. From the signing statement last Friday following passage of the Supplemental Appropriations Act, 2009:

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.


Pretty clear to me that President Obama intends to make his duty to consult with Congress first a discretionary one, not a mandatory one. I guess you could argue that the harm isn't realized until he makes good on his intent, but that's really a stretch.

Or, from his signing statement following passage of the Omnibus Public Land Management Act of 2009:

Section 8203 of the Act provides that the Secretary of the Interior shall appoint certain members of the Erie Canalway National Heritage Corridor Commission "based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor." Because it would be an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission.


The bill passed by Congress apparently requires the Secretary of the Interior to be bound by its recommendations for filling the Commission's ranks. The President says he'll have his Secretary consider said recommendations, but not necessarily follow them. How does this not constitute an attempt to execute an end-around on the law passed by Congress?
7.1.2009 9:02pm
jccamp (mail):
Owen -

Actually, my statement was about the ABA and others, not about the presidential candidates. But if you want to have that discussion, on the video tape linked, Candidate Obama clearly says he will not use signing statements to "end run around Congress" os something similar. if you read his own signing statements, most of them deal with limitations or restrictions on presidential authority by Congress that he says he will not observe. Which part is unclear? What he says he won't do, or what he is doing? Of course, what I also said was that he engaged in behavior consistent with political candidates of any stripe, and as such, i felt it was acceptable.

But what I said in my first post was that "signing statement" became a kind of anti-Bush mantra, neither subtle nor nuanced in any way. In 2006, the ABA position was that signing statements of any kind that purported to question the constitutional purity of any bill in fact required a presidential veto, and that signing statements were, in effect, either an abdication of presidential duty, or a unlawful grab for presidential authority at the expense of Congress. Where are the proponents of that absolutist view now?
7.1.2009 9:05pm
jccamp (mail):
I see Chris L anticipated and improved upon what I was trying to say.

Gratias.
7.1.2009 9:07pm
Cato The Elder (mail):
*peeks*...I can't even watch anymore.
7.1.2009 9:24pm
Suzy (mail):
Signing statements come in a few varieties, and I know there is some legal scholarship on this issue. It might be helpful to know what the differences are, so that we can understand and evaluate Obama's signing statements in this light. The "is he a hypocrite?" and "no he's not!" back and forth is not really illuminating anything here.

Obviously Presidents should be allowed--even encouraged--to clarify the meaning of what they are signing when Congress sends a bill that is unclear, or even potentially inconsistent. This is ok for any President, be it Bush, Clinton, or Obama. It also doesn't seem that the statements are binding in any way. However, when do they rise to the level of a more serious disagreement between the President and Congress, showing that the President has no intention of carrying out something that Congress did intend to be carried out? How should that situation be dealt with? I'd like to hear some proposed criteria for signing statements that fall into this category. I think they're basically wrong no matter which President issues them, but it's a harder matter for the layperson to judge when a statement falls into that area.
7.2.2009 2:30am
Tim McDonald (mail):
First off, I am not opposed to signing statements at all, I think they can sometimes be very useful, ie, POTUS describing what he thinks he is agreeing to, and sometimes are abused (POTUS saying he is signing off on this bill, but damned if he is going to enforce it).

My issue is, OBAMA F--KING LIED. He said he would not use signing statements. He has used signing statements. If he left himself a loophole, or tried to "nuance" it, he certainly gave the voters the impression he was NOT going to use signing statements.

He is a typical Chicago machine politician, no more no less, and for those of you who still have not figured it out, to paraphrase Glenn's words, if you are not sure who the rubes are, look in the mirror.
7.2.2009 12:49pm
NotAConcernTroll (mail):

I mean, this post is appallingly petty and small minded. Is this the playing field that people want to win? "OOOhhh, he said this during his campaign and now he is doing something else. Shame, shame, shame." Good grief. How sad.


yeah, its a shame something "petty and small minded" is in a major national publication and not a blog.
7.2.2009 1:55pm
Owen H. (mail):

He said he would not use signing statements.



No, he didn't. But feel free to keep ignoring that fact.
7.2.2009 2:10pm
Brian G (mail) (www):
Every President for years has done this. No one said a word when Bush did it. ANd Obama is the only one of them who is black. I think it is very obvious why all of a sudden everyone thinks signing statements are a big deal. Bush never got treated like this.
7.2.2009 5:13pm
jccamp (mail):
Suzy -

Signing statements as being pitched back and forth here generally refer to a President asserting that some part of a bill imposes or infringes upon presidential prerogative, and that further, the president will observe that portion of the bill consistent with the Constitution or some similar language. In other words, he intends to ignore the questioned section. Whether what GWB did is any different that what the current president has done is the argument perhaps.

As an example, see Chris L's post at 8:55. President Obama asserts some sections of bills which direct the executive to do or not to do something are actually unconstitutional forays by the legislative branch into executive authority, and that further, President Obama will take action under the relevant section "consistent with my authority" or some similar language.

When GWB was in the White House, there was tremendous criticism of the same type of qualifying statements, although GWB's most well known signing statements dealt with attempts by Congress to curb acts termed "torture" but which were disputed at the time by OLC lawyers as being within existing law. (at least that's m recollection of the largest complaint).

In 2006, the ABA, with the support of a number of people now within or supportive of the current administration, wrote a paper which termed all signing statements as being wrong and a misuse of Presidential power. The point of the some argument here is about the failure of the same critics of GWB to raise the issue when the sitting President engages in such actions.

Thus, the back and forth "it's the same" - "No, it's not." (I'm in the "it was only bad because GWB did it" and "Now it's OK because BO is doing it" variety.)

I'm sure someone will quickly point out the deficiencies of my summary.
7.2.2009 5:53pm
subpatre (mail):
Owen H writes in reply to an unattributed He said he would not use signing statements. "No, he didn't. But feel free to keep ignoring that fact."

In fact, Obama did say that. From the tape:
"We've got a government designed by the Founders so that there'd be checks and balances. You don't want a president who's too powerful or a congress that's too powerful or a courts [system?] that's too powerful. Everybody's got their own role.

Congress's job is to pass legislation. The President can veto it or sign it. But what George Bush has been trying to do as part of his effort to accumulate more power in the presidency is, he's been saying 'Well I can basically change what Congress passed by attaching a letter . . ." (Barack Obama) emphasis added

"The President can veto it or sign it." Veto it or sign it. Period.

So in fact, although Obama said several different things at once, he indeed did say he would not use signing statements. It's not the "yes" (after "Do you promise not to use . . .") at the tape beginning that condemns President Obama.

It is where Obama defined signage —his own definition as a Constitutional scholar— as an unconstitutional abuse of the office.
7.2.2009 6:14pm
Desiderius:
"Nope. I'm hoping for Barrett/Kelo 2012, or something along those lines."

Petraeus/Volokh '16
7.2.2009 10:34pm
Owen H. (mail):
subpatre- that's a great mind-reading act you've got there, knowing what Obama was "really" saying. I notice that even the statement you cite doesn't actually say anything about signing statements in general, and to my reading simply confirms what he said many times, that he would not try "get his way" with them as Bush did.

I have to say, this is just one of many issues where Obama-bashers denounce an action (whether or not it is actually what they claim), yet were mostly silent before, when it actually was occurring.
7.3.2009 10:36am
Desiderius:
Owen,

"he would not try 'get his way' with them as Bush did"

Whose way do you imagine he seeks to get?
7.3.2009 11:05am

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