The Volokh Conspiracy -

[Eric Posner, March 12, 2009 at 6:38pm] Trackbacks

President Obama's first signing statement.

Here. A few days ago, President Obama explained that he would issue such statements more responsibly and sparingly than Bush did. Bush used the same constitutional theories that Clinton, Bush I, and Reagan did; what was distinctive about President Bush's practice was that he would frequently spew forth grapeshot claims that knocked out unidentified provisions of a bill ("everything that is inconsistent with my commander in chief power"), whereas Clinton tended to issue more targeted statements that identified a particular provision of concern, although he fired grapeshot as well. We see the same old Reagan/Bush/Clinton/Bush theories in Obama's first statement (including our old pal, the commander in chief power), and we even see the grapeshot approach in the first ("Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H,"), fourth ("Numerous provisions of the legislation"), and fifth bullet points. Bush challenged many more statutory provisions than Clinton did (but both of them challenged an infinitesimal fraction of the entire legislative output of Congress during their administrations), but because he cited the same clauses of the Constitution, it was hard to tell whether the difference between the two was that Bush had a more aggressive theory of presidential power or that he merely applied existing theories more consistently.

The signing statement controversy was phony. People had legitimate complaints about the Bush administration's theories of presidential power, but the media couldn't understand the issues, and so preferred to talk about how many signing statements each president issued. I discus all this here.

Back in 2006 an ABA task force issued a report that "opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress." Will it mount the ramparts yet again? Or are its members too busy trying to find jobs in the Obama administration?

Related Posts (on one page):

Michael Stern Responds to Peter Strauss on Obama's First Signing Statement:
More on Obama's signing statement.
President Obama's first signing statement.

[Ilya Somin, March 14, 2009 at 11:58am] Trackbacks

Michael Stern Responds to Peter Strauss on Obama's First Signing Statement:

Co-blogger Eric Posner recently posted Peter Strauss' analysis of Barack Obama's first signing statement, which argues that Obama claimed less sweeping power to withhold information from Congress than did President Bush. Michael Stern, an expert on legal issues involving Congress, has now responded to Strauss here [HT: my colleague Nelson Lund]. Whether or not Stern succeeds in proving that Obama's position is as sweeping as Bush's was, he certainly does show that Obama's statement leaves a great deal of room for him to withhold information whenever the administration claims that the public interest might require it:

With regard to the Grassley Rider, Obama says "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."

Strauss claims that "[t]his is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at 'Congress.'" . . .

Strauss is simply wrong. Because the Grassley Rider is not a new provision, but has been included in annual appropriations measures since FY1997, one can compare Bush's signing statements on this exact issue. For example, in a December 10, 2004 signing statement, Bush stated that he would construe the Grassley Rider "in a manner consistent with the President's constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

Like Obama, Bush purported to authorize the withholding only of certain categories of information. In reality, however, these categories are extremely broad. Indeed, if Bush had stopped after "deliberative processes of the Executive," his statement would have arguably covered pretty much anything the executive wanted to withhold. As anyone who has performed congressional oversight will tell you, the deliberative process privilege can be and has been (not necessarily properly) used to withhold a great deal of information that the executive prefers not to share with Congress. The words "or the performance of the Executive's constitutional duties" I translate as meaning "just in case there is something that we can't justify withholding under deliberative process or other privilege, we will still withhold it if we think it appropriate to do so."

How is Obama's statement any different from Bush's, though? Although it uses different phrases, it amounts to exactly the same thing. "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." If Obama had stopped at "properly privileged," his statement would still cover anything under Bush's foreign relations and national security categories (executive privilege) and Bush's deliberative process category (deliberative process privilege). As a practical matter, this is enough to give the executive flexibility to withhold information in virtually all circumstances. (Needless to say, the word "properly" is meaningless because it is the executive that will decide what is "properly" privileged).

My own view is that both Bush and Obama's positions show insufficient respect for Congress' authority. If Obama's statement is an improvement over Bush's in this respect, it is at most a very marginal one. In practice, both statements seem to allow the administration to withhold information from Congress almost any time it wants to do so.