Presidential Signing Statements -- The More Things Change:
I'm sure it's only a matter of time until the ABA denounces as "contrary to the rule of law and our constitutional system of separation of powers" President Obama's use of signing statements to voice constitutional concerns about legislation he signs into law. See ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, Report at 5 (July 24, 2006) ("ABA Task Force Report"). The President quietly issued another such signing statement on Tuesday, the fourth constitutional signing statement of his young presidency.
The signing statement notes that six Members of Congress to be appointed to the newly created Ronald Reagan Centennial Commission may serve in an advisory or ceremonial capacity only and may not administer the act, consistent with separation of powers doctrine, the Appointments Clause, and the Ineligibility Clause. It read:
I wholeheartedly welcome the participation of members of Congress in the activities of the Commission. In accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390).
President Bush issued a remarkably similar statement in 2001:
Consistent with the requirements of the Appointments Clause of the Constitution, I welcome the participation, in an advisory capacity on the commission, of representatives of the Judiciary; the Brown Foundation for Education Equity, Excellence, and Research; the NAACP Legal Defense and Education Fund; and the Brown v. Board of Education National Historic Site in the activities of the commission. While the Constitution does not permit them to participate in the performance of executive functions, their advice will be crucial to the effective functioning of the commission. As I exercise my constitutional power of appointment to name 11 members of the commission, under the Appointments Clause and the enabling legislation, I welcome, as a matter of comity, the suggestions of the congressional leadership for those positions.
Signing Statement for H.R. 2133, creating the "Brown v. Board of Education 50th Anniversary Commission" (P.L. 107-41) (Sept. 18, 2001). As a Deputy in the Office of Legal Counsel, I testified on Presidential Signing Statements before the House Judiciary Committee, and so I am fairly familiar with their past use. As President Obama's signing statement itself suggests, similar concerns have routinely been expressed by Presidents of both parties for the past quarter century.
President Obama's most recent signing statement is novel not for its substance so much as for the layers of political cover the Administration has provided itself, by (1) explicitly mentioning a forebear who expressed a similar concern; and (2) explicitly noting that the Administration "has so advised the Congress" before enactment. Noting that the Administration has advised Congress of its objections addresses one of the recommendations of the ABA Signing Statement Task Force, that the President "communicate such concerns to Congress prior to passage." ABA Task Force Report at 5. Confirming that such notice was given in the signing statement itself seems prudent as a matter of congressional relations, but it is more a matter of style than substance. Although there have certainly been exceptions, administrations of both parties (including the Bush Administration) have routinely advised Congress of their constitutional objections through informal contacts and formal bill comment letters. The Obama Administration has now taken an additional step to "paper the record" by noting that fact at the time of the signing statement.
For those of you keeping score at home, based on the listing of signing statements on coherentbabble.com (which includes both constitutional signing statements and uncontroversial rhetorical or laudatory signing statements), President Obama has issued more constitutional signing statements than President Bush had at this point in his presidency (by my count, four versus one).
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.
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.